*1 BLACK, Black, W., Sr. Elwood
Joyce, Appellees,
STEPHENS, Wayne of Allen- Gable, Carson, Appellants.
town and
No. 80-2621.
United of Appeals, States Court
Third Circuit.
Argued May 1981. Sept.
Decided 1981.
Rehearing Rehearing In Banc
Denied Nov.
183 *3 (argued), Stamberg,
Richard J. Orloski Calnan, Allentown, Caplan Pa., appel- & for lees. Butz, (argued),
Richard F. Hud- Stevens Wickkiser, Tallman, & Ka- ders William C. Pa., Allentown, thryn Mayer, Wohlsen appellants. GIBBONS, HUNTER
Before GARTH, Judges. Circuit OPINION OF THE COURT III, HUNTER, Judge. Circuit JAMES Black, Appellees, Joyce Elwood and rights filed this section 1983 civil action against appellants, Wayne Stephens, Carson Gable, Allentown, as a City and the result of a confrontation between Blacks and Detective on March that Stephens, Blacks claimed a plainclothes detective with the Allentown force, violated their' constitutional rights, initially by the use excessive force Lehigh in incident 10th and Streets three filing Allentown and later Gable, charges. then unwarranted chief Allentown, police, and the were also promulgating named as defendants for that caused to file ad ditional Elwood Black investigation delay any disciplinary order to addition, de into incident. these have alleged adopted fendants were encouraged the use of excessive department. force the officers within the trial, day After an eleven found all appellants liable and awarded the three $35,000 puni compensatory Blacks Appellants’ damages. tive motions v., p. il: 15 m. judgment n. o. the alternative Elwood Black drove his pick new were denied. On review of the Ville to wife Coupe up Cadillac de his there finishing Upon record we hold that was sufficient who work. his arrival finding liability give evidence to sustain a he wife learned that his had offered to damages against co-worker, Shirley defendants. In addi- Deily, a a ride home. tion, there were no errors below that re- Deily Ms. the front seat got passenger quire We will a new trial. therefore Joyce got affirm and in the rear on district court.1 passenger They dropped Deily off at side.
7th and and then Lehigh proceeded Streets pick up west on Lehigh to some sandwiches FACTS at a local restaurant. parties all hotly contest but the basic however, record, facts. A review of stopped light The Blacks for a red *4 21,1977 the following: reveals On March of Lehigh at westbound lane at the intersec- resort, Supreme plete by 1. The United the States Court trial record court of decided first Concerts, City Inc.,-U.S. Newport argued by Ap- of v. Fact was peals, both sides to the of Court -, (1981) fully S.Ct. L.Ed.2d 616 this and has been briefed before argument oral after had been held in this case. at 2754. Court.” parties question We asked the to brief post-argument the Allentown in its con- brief Newport punitive whether the award of requirements affects tends that it fulfilled the of Rule City damages damages the objected punitive Allentown this in 51 when it to the parties case. Both during did so. charge instruction again the and conference briefs, reading given. After after instruction had The the we the been conclude that Newport support punitive cannot the record affect award of does not Allentown’s conten- damages against conference, charge During Allentown in this tion. vens, case. Fed- the Mr. Ste- Allentown, requires eral Rule of Civil Procedure 51 that a “We counsel for stated that party object punitive damages any part to instructions before the don’t think has retires, distinctly “stating the matter to which this case.” 11-72. N.T. He this elucidated objects ground objection.” puni- he stating and the of his claim “I don’t believe that City Failure damages proper against to do so a constitutes waiver of tive Allentown, are the error, (except plain they secondarily only error the instructions a since are lia- here, ble, really, doctrine 2754.) punitive damages penalty which is issue not at 101 S.Ct. at and is a argument actor, person that Allentown cannot be the not the who had an punitive damages City Allentown, held liable for because it is a act don’t done for it. The I municipality responsible made was not before the trial believe N.T. under the law.” prior argu- court or before to this court oral 11-75. The court treated state- trial this latter Thus, “proce- objection holding city ment. Allentown barred its ment as an darily secon- the default,” id., asserting respondeat superior dural from that conten- a theo- liable under liable, ry, city, tion now. and the stated that found Newport, city directly challenged pu- In the first the would be found liable. damages ground delivered, charge nitive instruction on the a After the was Mr. Stevens municipality punitive improper held cannot be liable for stated it is the that “I think under damages charged punitive under 42 1983 in its § U.S.C. motion facts of this case damages. have on that, a for new trial. The trial court indi- noted the Court should have think challenge untimely, punitive damages proper under Rule the was but were cated that legal nonetheless reached the gument. merits of the ar- this case.” 11-115. The trial court con- N.T. Supreme Court also reached the strued Mr. Stevens’ statement as a claim merits, legal asserting that the trial court had the war- facts of the case were insufficient to city’s question damages sending punitive refused to 51 to bar allow Rule con- rant punitive “Although jury, contrary. tentions. to the and ruled question perhaps point city have been could avoided sim- At no counsel indicate did reliance, ply by upon petition- objection legal Rule doc- under his was based on the default, procedural judge may punitive damages er’s concluded trine that not be award- justice required against municipality. that the interests careful ed party may “A under § 1983 question’ ground objecting consideration of this ‘novel of federal not state one when 2753-54; attempt rely law.” 101 S.Ct. at footnotes to an on omitted. instruction case, sharp objection ground ap- this distinction to where the different peal ” Miller, Wright issue was neither nor briefed in raised the low- .. .. & Federal Practice court, Thus, prior argument Newport er court nor 2554 at 647. Procedure § Newport question municipali- upon punitive impact of whether a can have no award of ty may punitive damages damages against be held liable for of Allentown in this squarely presented “was and decided on a corn- case. Street, Wayne Stephens, of 8th per tion on 40 they approached miles hour. As 29th detective, duty plainclothes pulled as a be- Lehigh, 2.1 approximately miles from patrol hind them in unmarked car. Lehigh, they flashing 10th and saw red transpired subject What next is the lights and encountered a roadblock. dispute. much They stopped at the roadblock and were aggravated arrested for assault officer Blacks, According to the when the traffic Shoemaker the Allentown force. light changed Mr. Black and car another proceeded through the intersection at a rea- Stephens’ Detective version of the events speed. is, sonable rate of crossing After predictably, According much different. intersection, detective suddenly his testimony, Stephens first noticed the up raced from passed behind and the Blacks’ pulled vehicle as he behind their car by crossing Blacks’ vehicle yel- the double Lehigh. intersection of 8th and Lehigh low lines on street. Black star- light car, When changed, the Blacks’ by Stephens’ tled re- originally recklessness and in the outside lane westbound marked to his wife Lehigh, about driver. started into to swerve the inside Stephens began pass lane. As car, passing After Blacks’ lane, passing outside or the Blacks’ vehicle stopped unidentified third car swerved back into the left lane and forced the intersection of Lehigh. 10th and lines, over yellow both into the stopped Stephens, about six feet behind Stephens stopped eastbound traffic. for a the outside point, westbound lane. At this *5 light Lehigh red at 10th and and the Blacks’ Stephens jumped and, out of his car with- stop car screeched to a a few inches behind himself, out identifying approached the Stephens, him. worried that the driver Blacks’ car and screaming started that Mr. might something intoxicated was Black was a “rotten driver.” Detective amiss, got out of ear his and walked toward slacks, Stephens wearing open was col- vehicle, drifting Blacks’ which was now shirt, lared and a nylon windbreaker. As slowly. Stephens backward if inquired Stephens approached, put Black his car there, anything wrong was and Black reverse and started to drift Af- backward. screamed that Stephens was “rotten driv- moment, ter arguing Stephens with for a point er.” At this car Blacks’ lurched “Why bothering. Black said: am even directly at him left front tire rolled way. Your car is in blocking It onto Stephens’ detective foot. He screamed traffic. your Will move car so I can vain get for Black to off his foot. Final- move mine get (Trial out of here.” ly, excruciating pain, because of the Ste- 27.) Trans. put Vol. 2 at Black then car his phens drew his revolver and Black ordered attempted pull drive and around to the to remove his up car. Black then backed left of the approaching Stephens. detective swung right through the inter- At point this Stephens, pulled out his ser- section. vice revolver and aimed it at directly head, Black, Black’s while Mrs. ensued, who was A high speed Stephens chase seat, still right pre- rear was in the testifying he traveled at to 80 miles cise line of gun fire. With Stephens drawn per stay hour to in visual contact with the screamed that Black had driven onto his Blacks’ Stephens help car. radioed for foot and threatened to shoot Black did officer set up Shoemaker a road block at not move the car. Black testified his Lehigh 29th and Stephens When Streets. foot, car was no where Stephens’ roadblock, near but arrived was Shoemaker he backed up and drove the right around escorting squad Elwood Black into a car. Stephens’ vehicle and continued west on parties general have a understanding Lehigh Street. happened what next. Elwood and
Terribly shaken their encounter with Joyce transported by Black were officer yet the as gunman, unidentified the Blacks Shoemaker to the Allentown Police station. shop drove toward the sandwich During trip, very about upset was
promised “get [Stephens’] his ass.” he personally handled all complaints by pri- handgun, Black was also concerned about a vate citizens against police officers. In ad- name, registered legally in his that was in dition, Gable testified that he drafted the glove compartment of his car. Officer part and that it was every radioed the units Shoemaker to search the police officer’s “Blue Book” depart- or the gun, car for the as well as some medicine operating procedures. ment’s internal Black needed for his asthma. Stephens morning claims that in the fol- a. m. Wayne Stephens At about 1:00 filed arrests, lowing Lehigh he consulted the complaint aggravated a criminal assault County Attorney, Lynn Assistant District filling Black. While out the com- Cole, in accordance with established plaint, Stephens that Black testified was relating to night Stephens arrests. claims extremely upset still promised and had to Cole recommended that three additional complain Mayor to Chief Gable and the charges be filed Black. This testi- addition, Allentown. at the sta- is, however, unsubstantiated; mony Cole tion, Stephens testified Black said he took a position new prior Florida handgun needed his because “the world is trial and was not called as a witness. Fur- full of like [Stephens], nuts and that if he ther, there charges were no additional filed had gun, his he’d shoot [Stephens].” Black until approximately a week later. arraigned by Magistrate Stahl and re- On March 23 or Chief Gable met with leased on his own recognizance at approxi- detective and informed him of mately 1:40 a. m. Elwood complaint Black’s his about use of Elwood Black returned to the sta- excessive force during the March tion on March 1977 to register a com- Thereafter, 29, 1977, incident. on March plaint about Wayne Stephens and the filed three additional leading events to his arrest evening against Black based on March 21 inci- of March 21. spoke He with Chief of Police dent: recklessly endangering per- another Gable, Carson but was informed that no son, carrying deadly weapon, a concealed investigation *6 conduct would (Trial and terroristic threats.2 Trans. Vol. 4 commence until the charge against Black 47) at The charges carrying of a concealed was resolved. Chief police Gable cited a weapon and terroristic threats were subse- regulation, contained in the official quently dropped and Black was found not manual that states: “Please Note: Where a guilty endangering on the recklessly charge. complaint alleging misconduct on part Black was guilty simple later found of as- of an officer arises from an incident where sault, but on appeal this conviction was arrest, officer made an disciplinary vacated and remanded for new trial. The hearings (against the officer) will not take record is silent present as to the status of place until the arrest charges finally are (Trial 20, 49-50) this case. Trans. Vol. 11 at adjudicated.” (Allentown Depart- Police ment Blue 15a.) (Trial Book at Trans. Ex- The Blacks rights commenced this civil Q) trial, hibit At Chief Gable testified that action against appellants pursuant to 42 Black, 2. Commonwealth v. building, Criminal Docket other or to cause evacuation of a # 2705, 2706, 1-4-265. 18 place assembly, facility Pa.Cons.Stat. public §§ & or trans- (Purdon 1973). provide: portation, These pub- statutes or otherwise to cause serious inconvenience, disregard lic or in reckless Recklessly Endangering Another Person: causing person risk such terror or A inconven- commits a misdemeanor of the ience. degree second recklessly engages if he in (Purdon 1973). places Pa.Cons.Stat. § conduct person may place which another danger Firearms not to be carried without a license bodily of death or serious injury. (a) person carry Offense defined. —No shall a any (Purdon 1973). Pa.Cons.Stat. firearm in § 2705 vehicle or concealed on or person, except place Terroristic Threats about his in his of abode person A guilty business, place of a misdemeanor of the or fixed without a license degree first provided subchapter. he threatens to commit therefor as in this crime of (Purdon 1973). violence with intent to terrorize an- 18 Pa.Cons.Stat. § (1976) May performance force in the U.S.C. 1977 in the their duties § proximately District for the officers caused De- United States Court East- Wayne Stephens use Pennsylvania.3 spe- ern District of fendant excessive At against Joyce force Plaintiff Black or interrogatories cial were submitted to the Plaintiff 10th and Le- Elwood at jury all appellants and were found liable. high Streets on March 1977? particular In found: Yes. A: Q: Do you find Defendant
Wayne Stephens used excessive force (Joint 10-12.)4 Appendix then against Joyce Plaintiff Black at 10th and compensatory damages awarded $500 Lehigh Streets on March 1977? $3,000 against Wayne compen- Stephens, $1,500 satory damages in punitive and A: Yes. Gable, $20,000 against and in com- Carson Q: you 7. Do find that Defendant $10,000 pensatory punitive damages and Wayne Stephens used excessive force against of Allentown. against Plaintiff Elwood Black 10th appellant Each submitted a Lehigh motion Streets on March 1977? judgment o. n. v. and each motion A: Yes. addition, appellants denied. In sub- Q: you 14. Do find that Defendant mitted motions for new trial on four Carson promulgated imple- Gable one, grounds: the jury’s verdict was regulation mented administrative evidence; two, weight proximately which caused Defendant awards of were arbitrary Wayne Stephens to arrest and file unwar- excessive; three, that several items of charges against ranted Plaintiff Elwood excluded; crucial evidence were improperly Black? four, the trial court erred its A: Yes. jury. instructions After review of Q: you 15. Do find that Defendant enough record we hold that there is City of promulgated Allentown and im- support evidence verdict plemented an administrative Further, appellant. appel- each which proximately caused Defendant lants’ motions a new trial are also with- Wayne Stephens to arrest file unwar- will, however, out merit. We examine each charges against ranted Plaintiff Elwood appellants’ claims. Black? A: Yes. DISCUSSION Q: 16. Do find that Defendant examining the trial court’s denial Carson encouraging Gable had v., appellants’ motions for o.n. Depart- members the Allentown Police required we are to “review the record in *7 engage ment to in the use of excessive light this case in the most favorable to the force performance of their duties non-moving party, ... and to affirm the as police officers? denying of district court A: Yes. motions ‘critically unless the record is defi Q: 17. Do find that Defendant quantum cient of that minimum of evidence Carson Gable’s of encouraging might reasonably from which the jury af ” members of Depart- the Allentown Police ford relief.’ Chrysler Dawson v. Motor ment engage (3d use Corp., of excessive 630 1980), F.2d 950 cert. Cir. laws, party 3. The text section 1983 states: tion and shall liable to the injured law, equity, in an action at suit in or who, Every person any under color of stat- proper proceeding other for redress. ute, ordinance, regulation, custom, usage, (1976). 42 U.S.C. 1983 § any Territory, subjects, State or or causes subjected, any to be citizen of the United appellants’ general than Other directed ver- person jurisdiction States or other within motion, objection dict no counsel had to either any privi- deprivation rights, thereof to the jury wording or the the substance rogatories. inter- leges, or immunities secured Constitu- (Trial 3) Trans. Vol. 8 at 188 959, powers grossly sive exercise of his inflict
denied,
1418,
450 U.S.
101 S.Ct.
67
harm.” Not all common law torts
(1981), quoting Denneny v.
undue
383
Sie-
L.Ed.2d
officers, however, rise
433,
(3d
1969).
by police
committed
439
Cir.
gel, 407 F.2d
See
Club,
the level of a constitutional harm action-
Eagles Football
Philadelphia
v.
Chuy
1265,
(3d
1979);
1983. Bivens v.
Un-
1273
Cir.
Rich v.
able under section
Six
F.2d
595
1979).
Agents
Bu-
Lines,
541,
(3d
known Named
of the Federal
F.2d
544
Cir.
596
U. S.
Narcotics,
388, 409,
403 U.S.
91 S.Ct.
the record reveals
reau
examination
Our
could,
2011,
(Harlan,
1999,
(1971)
J.
Appellant 1983). Carson Chief of Police Allentown,
in
was held liable for damages
jury
findings
returned
of two
First,
under
jury
two theories.
found
First,
such causal
in this
promulgated
Gable
connections
case.
imple-
Chief
police
mented
regulation
response
interrogatory
a
to
they
that caused de-
number 14
tective
to file three
regulation,
unwarranted
found
delay
that Chief Gable’s
charges against
Second,
the Blacks.
ing any disciplinary investigation of an offi
policy
found
Chief Gable had a
cer’s
until
underlying
conduct
arrest
encouraging members
po-
Allentown
resolved,
proximately caused detective
department
lice
to use excessive
force
the Stephens
to file unwarranted
performance of their duties
Second,
against
response
Elwood Black.
policy
proximate
was the
cause of
17,
interrogatory
number
found
use of excessive force
the Blacks.
that Chief
encourag
Gable had a
Appellant Gable claims that
there is no ing the use of excessive force and that this
evidence
support
record to
such a
policy proximately caused detective Ste
disagree.
verdict. We
phens
such
use
force
the Blacks
21,
during the March
1977 incident.6 We
hold
police
To
a
chief
under
liable
have examined the record and hold that
section
1983
the unconstitutional actions
supports
findings.
these
officers,
of one
plaintiff
required
of his
establish causal connection between the
Initially,
there is
evi
sufficient
police chief’s actions and the officer’s un
promulgated
dence to establish that Gable
constitutional activity. Commonwealth of
regulation
authority
and had
do so.
Porter,
Pennsylvania v.
659 F.2d
at
306
321
Carson Gable testified that while he was
(3d
1981) (en banc).
Cir.
The court in Por
he
“disciplinary
Chief of Police
was the
ter recognized that “Rizzo v. Goode [423
agent”
police
department;
internal
362,
598,
U.S.
S.Ct.
L.Ed.2d 561
(Trial
discipline was under his control.
(1976)] requires
degree
that we focus on the
119)
part
Trans. Vol. 4 at
As
of this re
participated
which
in a
[the
chief]
sponsibility,
imple
Chief
wrote and
Gable
pattern
of violation
virtue of knowledge,
disciplinary regulation
mented the
issue:
acquiescence, support
encouragement.”
Porter,
complaint
“Please
Where
alleging
Note:
Judge
emphasized
at 321. As
Garth
(3d
an
Hyland,
Cir.),
part
Lewis v.
F.2d
misconduct on the
officer arises
denied,
cert.
an
U.S.
54 from
incident where the officer makes
(1977),
arrest,
L.Ed.2d 291
“mere
hearings
invocation of
disciplinary
(against
Special Interrogatories
Depart-
14 and 17 state:
members of the Allentown Police
engage
ment to
in the
of excessive force
use
Interrogatory
you
No.
Do
find that
Q.
performance
duties as
promulgated
their
defendant Carson
and im-
Gable
plemented
proximately
officers
caused
defendant
an administrative
Wayne Stephens
proximately
Wayne
force
which
to use excessive
caused defendant
against plaintiff Joyce
plaintiff
El-
Black or
arrest
file unwarranted
charges against
Lehigh
Black?
wood
Elwood
10th and
Streets
A. Yes.
1977?
March
reads,
Interrogatory
Q.
Do
find de-
A. Yes.
*9
policy
encouraging
fendant Carson Gable’s
after the
hold
Gable liable under section 1983.
place
take
until
Chief
officer) will not
Porter, at 321-322.
finally adjudicated.”
are
charges
arrest
Blue
Department
Book
(Allentown Police
jury’s finding
Turning to the
Q)
regulation was con-
15a) (Exhibit
This
pro
a connection between Gable’s
Stephens
which
“Blue Book”
tained in the
moting the
force and Ste
use of excessive
copy
depart-
of the
printed
was a
testified
21,
evening of March
phens’ conduct on the
regulations, “sort of like
rules and
ment’s
overwhelming,
while
the evidence is not
up
we have to live
to.”7
our laws that
jury’s
is still
to sustain the
find
sufficient
44)
(Trial
Vol. 4 at
Trans.
ing. This court’s
is not to review the
task
novo,
uphold
record de
but rather
reg
The causal nexus between this
jury’s
that
verdict
if the record contains
Stephens’ filing of unwarranted
ulation and
which
quantum
minimum
of evidence from
timing
charges
supported
jury
rationally reached a
could have
It is
charges
filed
Elwood Black.
Dawson,
verdict.
191 (Vol. 135,137) may fairly represent it.9 4 at This be said to poli- without testi- official mony, light cy, injury government when viewed in the most favor- that the inflicts the Blacks, supports responsible re- as an under entity able to 1983.” § Monell, 694, to the sponses interrogatories that establish 435 U.S. 98 S.Ct. 2037. (emphasis pro- supplied) between of policy nexus Gable’s moting Stephens’ force and use excessive “may In this case Chief Gable fair in the incident with the Blacks. force represent ly be said to official policy” city of Allentown. Id. He wrote and
The City
appeals
of Allentown also
implemented
police
official
regulation
the trial court’s denial
motion for
of its
disciplinary hearings
concerning
which the
argues
n. o. v.
City
proximately
Stephens
found
caused
Department
v.
Monell
Social Services
charges against
file unwarranted
Elwood
City
York,
658, 693,
New
436 U.S.
98
authority
Black. Chief Gable is the final
(1978),
56
pre
L.Ed.2d 611
charge
police
force in Allentown. He
a municipality
being
vents
from
held liable
cabinet,
Mayor’s
is a member of the
propos
actions of
agents
theory
for the
its
a
under
budget
es
manages
and
and
respondeat
establishes
superior.
agree
we
While
policies
procedures
and
for the entire
position,
with this
Allentown
not found
was
(Trial
department.
Trans. Vol. 4 at 118-
Rather,
theory.
liable under such a
city
19). Acting
capacity,
in this
Chief Gable’s
liable
was held
because of a governmental
promulgation
was an offi
policy
proximately caused detective
policy
prox
cial act of
which the
found
Stephens
file unwarranted
imately
Stephens
caused
to file unwarrant
against Elwood Black.
charges.
City
ed
Cf. Schneider
of Atlan
Monell, the
municipali-
In
court held that
ta,
(5th
1980) (Prison
628 F.2d
Cir.
may be
directly
ties
sued
under section
engage
city’s liability
director can
if he
constitutional deprivations
inflicted
authority
repository
the final
or ultimate
upon private
pursuant
gov-
individuals
to a
city power). Landrigan,
962,
(2d
1972).
will
967
Cir.
We
affirm the
the trial
in
court erred
the exclusion and
district court’s denial of these motions.11
Specifically,
admission of certain evidence.
Appellants first claim that a new appellants claim that the admission of evi
trial must be awarded because the award of
prior
dence
to Stephens’
as
use of force and
appellants
all
damages against
three
the court’s refusal
to admit evidence of
arbitrary
appellants
excessive. The
Stephens’ prior recommendations was sub
$35,000
compen
were assessed a total
in
disagree. Stephens’ pri-
stantial error. We
satory
punitive damages.
We must
or
private
confrontations with
citizens were
jury’s damage
affirm the
award
it
unless
is
not
or
admitted
show his character
grossly
judicial
“so
excessive as to shock the
therewith,
conformity
he acted in
but rath
Morse,
Murray
conscience.”
v. Fairbanks
appellant
knowledge
er to show
Gable’s
149,
(3d
1979);
610 F.2d
152-53
Cir.
Edynak
(Trial
1-4)
these acts.
Trans. Vol. 7 at
As
Shipping
Chambon,
v. Atlantic
Inc. Cie.
562 to the
Stephens’ prior
evidence of
recom
215,
(3d
1977),
denied,
F.2d
225-26
Cir.
cert.
conduct,
good
mendations for
the court held
1034,
767,
434 U.S.
98 S.Ct.
Appellants also to the court’s will affirmed. promulgation instruction on the of exhibit GARTH, Judge, concurring Circuit Q, the Regula Allentown Police Blue Book part dissenting in part. validity tion. The of this must instruction conjunction be viewed in court’s My opin- disagreement with the entire charge order to determine if a new just may simply ion stated: There is no trial is warranted. Palm- United States v. evidence in this record can support which quite specific 12. ther or so court in its instruc- both those events. This is Stephens’ liability Wayne tions on detective for the is not because liable Lehigh: arrest at 29th and either are of those arrests if two conditions One, add, good May met: the officer must believe in Jury, Members of the even that valid, though you faith that the arrest was that is probable find an arrest without two, cause; probable Lehigh 10th there was that belief cause at Streets or even though you probable one. find no must have been a reasonable cause arrest, must, Lehigh you (Trial 50). 29th and 8 at This Streets Trans. Vol. instruction however, make another determination before was not erroneous. Wayne Stephens can hold for ei- liable liability in the use of excessive force in the any finding perform- amount officers; Carson Gable or the against Police Chief ance of their duties City Additionally, proximately of Allentown. ma- caused Ste- virtually ignored the jority opinion has vari- phens against to use excessive force damages issues raised Gable and the plaintiffs. ous present ques- substantial —issues addition, apart underly- quite from the which, my opinion, tions of law and in- liability, the no ing issue of record discloses damage against the entire fect permit evidentiary foundation would It is two defendants. for these rea- these evidence of the attor- consider that I sons dissent.1 neys’ a ma- apparently fees that constituted Joyce complaint plaintiffs and El- jor portion damage assessed award Wayne wood Black Detective Ste- Moreover, im- City. They phens complicated. complain is not among properly apportioned damages gun pointed them and defendants, inju- assessing for the same charges against filed then unwarranted Mr. high ries were nine which times as *13 the proceed- Black. As a result of criminal against high sixty Gable and times as allegedly ings wrongfully by initiated Ste- against against City the as were assessed phens, Mr. Black attorneys’ incurred fees Stephens totally The himself. record is court approximately costs and lost $250 support any naked of evidence that could in sales during period commissions the he any ei- punitive damages against award of present to be had in court. The other dam- $10,000 City. puni- ther Gable or the The ages claimed Mr. and Mrs. Black were damage against City tive the is also award totally subjective, almost consisting primar- contrary Supreme Court’s recent embarrassment, humiliation, ily mental Newport Con- holding City v. Fact anxiety, and at having discomfort to ex- 2748, certs, Inc.,-U.S.-, 69 101 S.Ct. plain the proceedings criminal family, to (1981), punitive damages L.Ed.2d 616 friends, At only customers. the against are not municipality available plaintiffs damages. testified as these to No an 42 action under U.S.C. 1983. Com- § doctors, psychiatrists, experts other or other pounding respecting damages is the errors testified respect damages. with to No law- $30,000 City the fact that the was assessed yer testified as to the reasonableness or damages Mrs. in favor of both Mr. and necessity attorneys’ bills that Mr. Yet, crystal Black. is the record clear Black testified he had incurred. The jury Stephens any had never filed criminal Stephens found liable On this $500. charges only against Mrs. and it was record, I say cannot this verdict was the which charges gave criminal rise to supra. unfounded. See note 1 award. What impossible is to understand from Because the result in is I believe this case record, however, jury’s the findings pertains seriously flawed as to the liabili- liability on part the of Gable and the ty City, of Gable the and because the City, and the of damages assessment give fails to to es- majority opinion effect against these two defendants. I can find damages, am principles tablished I support no for the jury’s record con- obliged doing, In so it becomes dissent. clusions that Gable and the defendants depth. necessary to examine the record in promulgated implemented an adminis- trative which proximately I. CHIEF GABLE POLICE caused to arrest and file unwar- A. Black; ranted charges against Mr. that Ga- had policy encouraging acknowledges, ble As the case majority members of Department the Allentown Police engage law is clear that obtain relief actor, respect Wayne Stephens, primary 1. With mined that in I as the Detective agree $500, liability jured plaintiffs that his and the as to the extent affirming jury questions. disagree sessed him cannot were with jury having having found him liable and deter him. as to
195 Gable, Police, Chief of actions and Mrs. Black Allentown’s toward Mr. plaintiffs played evening question must demonstrate that he were affirma- deprivation tively an affirmative role in taken linked some action Police rights. Specifically, there must following their Chief Gable. As discussion of link actions and Ste- reveals, causal between Gable’s the record the evidence adduced at phens’ challenged misconduct. support trial conclusion. cannot such a Goode, Rizzo v. U.S. B. (1976), Supreme L.Ed.2d 561 governing standard Court articulated the The record shows that Gable wrote Chief liability municipal police mis officials and distributed to each Allentown As observed in conduct. this court Lewis containing, officer a manual within the sec- (3d Cir.), de Hyland, 554 F.2d cert. headed, Against Complaints tion “Citizen nied, 98 S.Ct. 54 L.Ed.2d U.S. Officers,” following provision: Police (1977), Rizzo “was aimed at the failure complaint alleging “Please note: Where a plaintiffs prove existence of part of an officer arises misconduct plan adopted or unconstitutional from an incident where the officer made an official enforced defendants. arrest, will disciplinary hearings not take Throughout, emphasized the Court the com place after the are until arrest fi- plete absence of causal link between (Exh. Q); 43-44 nally adjudicated.” App. at individual officers’ conduct and added). (emphasis Trial Tr. Vol. at 121-22 responsible authorities. Mere invoca majority’s position mere ‘pattern’ ‘plan’ of the words tion did coupled of this regulation, existence *14 Accord, suffice without this causal link.” finding Stephens the that filed additional Porter, of Pa. v. F.2d Commonwealth 659 charges against learning Black after of (3d 336 1981) (en banc) Cir. (opinion him, complaint against Black’s is sufficient Garth, J.). of basis the finding regula- for the that Stephens “proximately tion caused” to ar- Lewis, plaintiffs sought injunctive In the charges. the rest and file additional The against relief Jersey the New State Police majority despite reaches this the conclusion alleged for an un- pattern practice of any absence of evidence in the record that constitutional of searches vehicles and trav- Stephens regulation, knew of the that by ever Troopers. elers various In State affirm- by it to the additional ing injunctive relief, the denial he was motivated file of this court that the would in charges, regulation concluded: any fact been of to him in have benefit Plaintiffs’ here demonstrated evidence avoiding consequences of the miscon- most at an on insensitivity unfortunate part. duct on his part responsible the of officials toward reports of Troopers. abuses individual major- to the Contrary suggestions the of department’s The apparent obliviousness ity, nothing police the there is sinister about complaints to citizens’ reinforces an im- department regulation question. As the pression of Beyond official indifference. discloses, evidence the regulation de- factors, however, these and aside from orderly signed disposition to for an provide the statistical number incidents against charges both the criminal the proved, there is evidence of a causal no complainant charges and the complainant’s between, hand, link the one either the officer, against police prevent the hierarchy Police or any depart- State with the oth- inquiry interfering each from other, directive, and, ment-wide er. testified at trial: As Gable the constitutional violations. opinion, things my In first come first. (footnotes omitted). F.2d at 554 101 Now, there The arrest was first. . . . is a
Thus, if get Police Gable and I pending Chief criminal case. If would liable, employer-employee relationship Allentown are to held rec- into be discipline prior ord evidence that case must disclose that Detective for internal 196 “ heard, impossi- quantum from ‘that of evidence
being it would be almost minimum words, other re separate jury might reasonably the two. which a afford ble ” case would be intertwined in v. F.2d Chrysler Corp., our internal lief.’ Dawson 630 denied, have case and I would no con- (3d 1980), a criminal Cir. cert. testimony. over the trol U.S. 67 L.Ed.2d F.2d (1981) (quoting Denneny Siegel, get a chance see this you When 1969)). direct form, (3d Cir. There is no will note that complaint think Stephens was aware of each evidence that ever lawyers present would be side. existence; regulation’s at he testi They cross-examine each other and could regulation would so entwine a criminal and an fied that he had never read the it employee personnel case that couldn’t Tr. Vol. 4 at 45. The before. Trial actually could harm actu severed and a would had to infer that be have fact ally regulation criminal case. from the had read police copy that received a he had Although Trial Tr. Vol. at 131-32. one Maj. op. manual. at 190 n.7. consequence disposing criminal charges addressing allegations before of the assuming Stephens But knew even disciplinary pro- misconduct is that there regulation, nowhere the record is ceedings may delayed, explicit terms prompted regu- he was evidence that regulation preclude any interpreta- charges lation to file the three additional regulation designed tion Black, much less Gable Mr. provide a means officer which an could “support encouragement” lent his shield his conduct departmental from scru- Porter, filing charges. those See tiny. delays The merely discipli- Gibbons, J.). supra, (opinion at 321 nary hearings; dispense it does not majority points to no evidence ultimately them or allow the officer by the Stephens’ charges were motivated to avoid them. As explained Gable trial: Indeed, sole- regulation. relies I considered that any delay could certain- ly upon timing ly high priority. employees have Our supply filed Black to constant; we lay are don’t them off ev- critical Maj. op. element. ery week or every two or In fact year. majority’s theory thrust of the nexus *15 lay off, we don’t them discipline so that Stephens because did not file the ad- three eventually could discipline occur the but charges against Black some ditional until in most cases range repri- would from a days Stephens few after Gable had advised to a day pay mand or up two without complaint to ob- sought of Black’s and had days. ten If I felt that warranted incident, tain version of the the Stephens’ that, more than I privilege had the of requirement causal has been satis- nexus going to City Council attempting and majority “it opinion fied. The states that get higher penalty or dismissal. jury for the to infer that reasonable Id. at 132. When whether it asked trial charges Stephens filed the three additional ever had come to any his attention that hear- delay any disciplinary in an effort to officers on the Allentown force were (footnote ing on the incident.” Id. omit- filing charges false regula- because of the ted). only is such Not the reasonableness of tion, “No, replied, Gable I it didn’t. don’t since, noted questionable an inference ” what gained see could be .... Id. above, would have had little to Stephens majority’s filing gain by charges, conclusion that record additional but supports evidence a causal Stephens departmental link between the indeed violated had regulation rules, and and filing charges additional the additional would not charges against depends string prevent disciplinary on a could not sanctions Moreover, of tenuous ultimately being inferences that imposed.2 do not constitute from Disciplinary proceedings against Stephens aggravated charge against al- assault Mr. ready stayed filing had been because time three additional Black at completely (citation omitted). the record is evidence, barren of evi- It is this and dence support which could a connection be- alone, this evidence majority opin- question, tween the which did supports ion claims the jury’s finding of no delay departmental more than hearings, “the encouragement and support required charges Stephens and the against filed to hold Chief Gable liable under section Black. informing 1983.” Id. How Gable’s Ste-
Furthermore, phens about Black complaint and there is no Ga- evidence from reasonably inquiry Stephens which the could ble’s the Black have con- about “supported cluded that Gable incident can encouragement encour- constitute the aged” filing of additional charges Rizzo, Lewis, and support required by against Black. Gable did no more than explained Porter is never majority. Stephens advise complaint against I suggest explanation lacking an because him ask for his version of the there is no evidence in the record that can Indeed, events. I suggest any police evidentiary fill gap. chief who did not steps take these to inves- tigate complaint a citizen would be derelict C. duty. in his quite This case is unlike Por- also strains to find support ter, supra, in upheld which this court the record for the determinations injunction against Police Chief James Por- that Chief Gable had a policy encourag- ter on ground supported that he ing members of the Allentown Police De- encouraged misconduct part of one partment engage in the use of excessive officers, Porter, his Baranyai. Frank force and proximately the district court had found that caused to use excessive force “despite complaints Porter never found so, plaintiffs. majori- Even fault with Baranyai pertaining to the ty concedes that “the evidence is not over- He took no ac- [of misconduct]. whelming.” Maj. op. majori- at 190. The tion to discipline him after he was con- ty’s argument can be summarized as fol- victed in criminal court of malfeasance in lows: policy may Gable’s be found from the office, publicly he has supported Baranyai procedure used in the filing complaints instances, in all he could give a single made officers and from his attitude report instance of a of an investigation to (testimony) concerning the role of force in complainant, he retaliated proper functioning depart- against other officers . .. who testified suggest ment. that there is no evidence otherwise complained relative to Bara-
nyai’s this record from which a conduct.” could have discovered such a “policy” and that even if Porter, supra, at 311 (opinion Gibbons, existed, “policy” such a which the record J.) (quoting Commonwealth of Pa. v. Por- reflect, does not no causal connection was ter, F.Supp. 686, 701 (W.D.Pa.1979)). *16 established between that “policy” and Ste- The majority opinion acknowledges that phens’ actions. Gable’s activities in connection with the Black complaint against While the majority finds the evidence were lim- ited “[speaking] sufficient, nonetheless only by to inform it does a so him of Black’s complaints and get[ting] his selective reading major- of the record. The version of the incident.” Maj. ity opinion op. appear tries make it at 190 Maj. op. Indeed, charges recklessly endangering at 190 per- further. n.8. even another — son, carrying deadly weapon, appellants a concealed contrary, claiming contend to the Nothing terroristic charges together. threats —were filed. in the that all would be heard Even supports majority’s gratuitous record ing any postponement occur, marginal find- if delay produced did filing charges charges of additional “[t]he such extra could certainly postpone adjudication only would slight. especially This true if would be charge finding initial preparation because further fact one assumes that the additional were required,” likely would be and hence unwarranted and hence were more to be delay disciplinary proceedings
would dropped serve to later or dismissed. his encouraged expected emerges Gable Gable not as trigger-happy, officers but as part job, police use force as a routine their a with a but chief restrained realistic even of force was not perspective by police when use neces- the use of on force sary. complete A more examination of officers: record, however, that, reveals far from tak- Q. assuming I be safe in you Would
ing a cavalier attitude toward the use of police use expect your officers to force on force, adopted a pro- Gable restrained and job? approach, tempered by fessional the realiza- Yes, expect A. I that. world, tion today’s policeman that in a fre- Q. fact, a would it be And as matter of quently must use force necessary where term, say you safe to that —would use the overcome resistance to law enforcement. police a officer who is his salt is worth majority states that “Chief Gable’s going job? to use force on the policy concerning the use of excessive force A. I think he has to. ensured complaint citizen’s about ex- Q. your Would also be view that a cessive police force never went into offi- police using who is not force is officer cer’s permanent personnel Indeed, file.... doing job? his complaint only such a get could into an A. I I can unequivocally, think state officer’s put record if the officer it there duty day if a officer is on (citation omitted). himself.” Id. A fuller day out and makes and at- arrests reading testimony, trial Gable’s on which tempts job do his in the climate of majority relies, fact, reveals that today’s society, he some has to use kind of Gable “policy” had no use of exces- force. sive force. Gable “I testified: don’t re- Q. you Would estimate for us how often got member when I complaint concerning [a you expect average police would offi- force], excessive other than this one. So I job? cer to use force on the policy, had no really.” Tr. Trial Vol. 4 at you A. Would like to define “force” for testimony This stands uncontradicted. me? record, As disclosed Gable’s han- Q. talking We are about— dling complaints concerning use of exces- People many A. have versions what not, sive force was suggests, as the definition, I your force is and want so that of a trying Chief to insulate his offi- that I properly. can answer accountability. True, cers from public some Q. force. Physical complaints of these went never into a often, Physical A. force. say? How file, personnel officer’s but this was only Q. Yes. the case the complaints presented were week; year; AA. what? orally. complaints When were made in Q. Maybe your this will recollec- refresh form, written they major whether were tion? minor, they would be put officer’s necessary. A. Whenever it is personnel record. Even with oral com- Chief, Q. you, How often would ex- plaints, Gable would make a written note of pect your physical officers use force? the complaint and retain it in a file in his office, depends type A. I think it calls any negative results a subse- get given day. we force quent Physical on a disciplinary hearing were placed in only used to to be overcome resistance. personnel the officer’s records. Id. Vol. 4 at 133-35; people resisting day, If we get ten one 121-22, 7Vol. 138-39. *17 expect people overcome ten to be majority quotes stating Gable as that The. I day, force. If no one resists that don’t “any officer ‘worth his salt’ would use force used, want any physical obviously. force every week his career very because few * * * * * * Maj. arrests are made op. without it.” at (footnote 190-91 omitted). say I would of course the record citation for read, however, When the trial transcript policeman is every that uses force almost every doing plain- week if he is his MR. ORLOSKI for of his career [counsel job, good that to A. say week Q. made are not [*] Your I certainly because officer without it. you of his your doing your job. feelings don’t use force [*] men? today, very uses career; you don’t tell the [*] on use of force once [*] few arrest's are every communicated patrolman week, every [*] week that a [*] you that —would Detective? A. Does not Q. to type Q. tiffs]: (cid:127) as the If If THE Wayne he policeman, type I COURT: was the other will you still have made him a hide when threatened. who backed down— rephrase All type right. was the other you type, question. referred would Probably A. not. Q. They your feelings know what were? They know cop years
A.
I was a
Trial Tr.
at 145-46.4
Vol. 4
I
and know what occurs on
the street
majority cites
Finally, the
two other inci-
certainly I don’t want them to turn their
involving
one
prior
dents
the Blacks
or
away
problems
backs
run
from any
complained
Stephens,
where citizens
about
might
the public.
[a]ffect
policy of encouraging
as evidence of Gable’s
added).3
Vol. 4 at 135-38 (emphasis
Trial Tr.
poli-
the use of
force and of that
excessive
also
discovered a
cy’s
acts
relationship
toward
promoting excessive force from
tes-
Gable’s
Maj. op. at 191
plaintiffs.
Although
n.9.
that,
words,
timony
majority’s
“Ste-
opinion
not make the
does
relevance of
phens probably
pro-
would not have been
clear, they
only
these incidents
could
have
type
moted
detective if he had been the
theory
been
their
cited for the
occur-
of officer who backed
down when force
rence is
encourage-
an indication Gable’s
Maj. op.
(citation
at
involved.”
omit- ment of
force and that
excessive
Gable’s
ted).
again,
testimony
But
when the actual
failure to
for those two
discipline
examined,
it becomes clear that Gable’s
Stephens to
incidents led
believe that use of
not
view was
that an officer
be
should
accepted
such force would
the future.
gun
timidity
to draw
quick
his
but that
accepts the
Even if one
view that
desirable
trait
in a
officer:
permits
evidence
a conclusion that excessive
Q.
you saying
Are
that if he was one
incidents,5
they
force was
the two
used
to,
other cops
these
referred
First,
liability.
are insufficient to establish
down;
type
type
that backed
who
the fact
few isolated incidents in
restraint,
that a
have
exercised
wouldn’t
use of force
volving
mattered?
excessive
occurred
taken in
disciplinary
that no
action was
say
A.
I didn’t
that.
response
is insufficient to show the
to them
MR.
defend-
STEVENS
[counsel
policy encouraging
existence of a
the use of
object.
There is a difference
ants]:
Mailet,
Turpin
such
619 F.2d
force. See
backing
exercising
down and
re-
(2d Cir.),
denied,
It is
straint.
unfair to tie those two
202-03
cert.
449 U.S.
together
question.
in one
(1980).
L.Ed.2d 475
solely
regard
3. Other officers
based
on his
testified
Gable’s
officer
evalua-
policy respecting
Maj.
op.
use of
Chief of
force.
tion of the officer’s use of force.”
Allender,
Captain
omitted).
testimony
Police
who was a
the time
(citation
Gable’s
Black,
involving
of the incident
Mrs.
Mr. and
merely
that there
indicated
had to be
com-
Hoffert,
McLean,
Patrolman
Patrolman
plaint
any disciplinary action
filed before
would
Captain
only
Howells all testified that Gable
begin. Trial
Vol. 4 at 146.
Tr.
necessary
advocated
use
of force
when
overcome
5 at 216-
resistance. Trial Tr. Vol.
response
Interrogatory
jury,
No.
18, 71-73, 75-76,
130-31;
21-22.
Vol. 6 at
prior
21, 1977,
Stephens,
to March
found that
propensity
did not
to use excessive
have a
majority opinion
4. The
has not characterized
performance
his
force in the
duties.
testimony accurately
when it states
disciplinary
“never
action
Gable
initiated a
*18
Second,
Maj.
discipline
op.
failure to
Gable’s
Ste-
191. Since the evidence
cannot,
Lewis,
under Rizzo and
satis-
failed to
a
phens
establish
causal
link between
a
link
fy
requirement of
causal
between
the regulation
the
and
actions so
action
misconduct.
liable,
official
and
as to hold Gable
the same absence
banc,
court,
sitting
en
As a
necessarily
proximate
causation
exists
Porter, supra
stated
:
respect
City,
whose asserted
is
role as
liability
solely
officials’ misconduct cannot
founded
on Gable’s
be
[T]he
merely a
municipal
failure
act.
officials
a
Such
policymaker.
played
must have
an affirmative role in
Services,
Department
Monell v.
of Social
deprivation
plaintiffs’ rights,
/.
officer[’s]
apportion-
when it
amount
decided the
Lewis,
thorities.”
supra,
201 Ball, Hunt, Hart, step Baerwitz, any wrongdoing, removed from Brown & 57 104, 112, $3,000 901, compensatory Cal.App.3d Cal.Rptr. found liable for 128 907 (1976); $1,500 Damages (1935). damages punitive McCormick on 70 damages. § As one court stated context medi Allentown, Finally, which was “ [plaintiff] prove expenses, cal ‘if failed to solely found liable because one of its offi- testimony further reasonableness cials, Gable, promulgated “improper” an payments, these it constituted a ... failure regulation, and thus was twice removed proof, which rendered immaterial any wrongdoing, from was found liable for ” proof paid.’ as to what she had Ross v. $20,000 $10,- compensatory damages Foss, 358, 366, 147, 77 92 N.W.2d 152 S.D. punitive damages. 000 in Accord, (1958) (citation omitted). Food- It is jury, clear to me that when it Stores, Patterson, 477, town Inc. v. 282 Ala. came awards Gable and the 483-84, 211, 216-18 (1968). 213 So.2d When City, assessing decided that instead of dam- jury, judge, rather than a is to make the ages based on the actual harm to the determination of the reasonableness and ne Blacks, arbitrarily it would damages award cessity charges, expert testimony is City’s based on the deep pocket. Although required as to the value of the services scope our of review of the amount dam- rendered. Wigmore See 3 on Evidence age narrow, extremely awards is Murray v. (Chadbourn 1970); 715 rev. cf. Lindy § Morse, 149, Fairbanks (3d 610 F.2d 152 Cir. Builders, Bros. Inc. v. American Radiator & 1979), we nevertheless must reverse an Sanitary Corp. (Lindy I), Standard 487 F.2d damages award when is clear from the 161, (3d 1973) (when judge 169 Cir. hears record that no evidence existed on which case, expert testimony on value of law damages predicated, could be or that yer’s necessary); services not Tranberg v. jury did not follow the trial judge’s instruc- 173, Tranberg, (3d 1972) 456 F.2d 175 Cir. tions legal as to the applied. standard (same). Evidence of the reasonableness and We also must reverse an award when the necessity of professional charges cannot jury has assessed rest on mere hearsay. Wigmore, Su- See 3 su preme pra, impermissible. (“[t]he persons Court has held to be 719 statements of §
declaring prices they their estimates of the A. taken, give would or receive are not credit persons, trustworthy of those as Despite basis, evidentiary lack of an value”). sertions of the fact of permitted district court in as- compensatory damages against Ga- sessing trial, only testimony concerning At ble and the City attorneys’ to include the Black, attorneys’ given by fees was Mr. who fees defending Black incurred in himself expenses testified that he had incurred the unwarranted $9,420, filed per calculated at a rate of hour. $60 against him. To attorneys’ establish fees as Trial Tr. Vol. 11 at 19-21. cross-exami- On nation, compensatory element of Mr. damages, the Black admitted that he did not plaintiff know prove merely many attorney spent must how hours his amount covered, his what items the bill which billed attorney, but also that associates, clerks, lawyers (partners, etc.) in charged amount was reasonable and neces- attorney’s spent his firm the time for which sary for the services rendered. See Pren- charged, any charges he was or whether tice v. North Am. Corp., Title Guar. 59 $9,420 the instant suit were included in the 618, 620, 821, Cal.Rptr. Cal.2d 30 381 P.2d fee. He conceded that he did not know 645, (1963); McLaurin, Cleland v. whether the bill was fair and reasonable 371, 376, Idaho (1925); 232 P. Ver- the work that was done.6 hagen Platt, 85, 92, v. 1 N.J. 61 A.2d (1948); Hiss Friedberg, 201 Va. in Lindy Much of what this court said (1960); Bros., S.E.2d supra, Roberts v. albeit in a somewhat different testimony No, sir, 6. Mr. Black’s was as follows: A. I am not. lawyer, You are not a sir?
Q. instance, context,7 rendered, a relevant here. For determination reasonable fees, discussing just aspect one our court legal requires a finding value of work *20 said: hourly attorney for each reasonable rate attorney’s of serv- Before the value the involved, legal reputation, based his ex- determined,
ices can be
the district court
perience, and
of work
Id. Even
type
done.
just
must ascertain
what were those serv-
done, however,
after
is
court
“[t]he
of
inquiry
ices. To this end the first
the
properly
merely
cannot
fix attorneys’ fees
spent
court
be into the
should
hours
by multiplying
hourly
the
rate for each
attorneys
many
the
hours were
—how
attorney times the
of
he
number
hours
spent
in what manner
which attor-
case”;
worked
quality
on the
of the
neys.
necessary to
It
is not
know the
lawyers’ work
complexity
and the
and nov-
spent
exact number of minutes
nor the
elty of the
also be
issues
the case must
precise activity to which each hour was
considered.
Id.
167-68.
specific
devoted nor the
attainments of
required
may
jury
Evidence is
so that a
attorney.
fairly
each
But without some
necessity
determine the
and
reasonableness
definite information as to the hours de-
activities,
attorneys’
they
sought
fees when
are
as
general
g.,
voted to various
e.
pretrial discovery,
negotia-
settlement
compensatory
damages,
reimbursable
tions,
spent by
and the hours
various
they
jury
are here. But here
was
de-
attorneys,
g.,
classes
partners,
e.
senior
nied this evidence. The
court ex-
district
junior
associates,
partners,
the court can-
rejected
argument
that
pressly
defendants’
not know the nature of the services for
plaintiff
prove
legal
had to
compensation
which
sought.
charges were fair and reasonable. Trial Tr.
In addition to ascertaining attorneys’ the number include fees as dam- spent hours and the nature ages. services safely light We can assume of the A. your easel A. Not ail of A. No. A. Q. hours? A. A. A. No. Q. I A. Q. Q. Q. Q. A. Yes. Q. hours that were Q. multiplying $60 that, Q. Q. that were called for in that bill? think trial; believe what was done? whether You have no Your Yes, You can’t tell us that? 1 take it this And It Is he the man who handled I have no How So, Do I do not know. All I know is that You don’t know of sir? could not is a do [*] is, you don’t know whether or that would be Mr. Orloski? you know, he that bill is fair and reasonable for lawyer many fair believe. [*] know be fair because way man. them. say, hours did he his times is Mr. Calnan? $9,000 figure spent [*] way what all of the items are firm. sif> no. knowing your yourself [*] were certain own my attorney necessary sfe spend it, everything? number of no. knowledge gotten by knowing [*] for I I 8. At dence, dards that should ized bills were excluded, tion value of the fees there as it is here. Trial Tr. Vol. 11 at 50-52 attorney. attorneys tion, the court’s central cessity Although A. A. Q. A. know whether SoQ. suit the work he Mr. into conclusion as to the reasonableness or ne- lawsuits, as an a set of itemized bills from Mr. Black’s assisted, I do not know. Sir, might I No, Calnan. Who he time Mr. Calnan was making up over defense counsel’s of the don’t know Mr. you and thus cannot who Trial Tr. Vol. I couldn’t element of to, Lindy attorneys’ be your charges. and did not address don’t district court admitted amI I don’t know to what successfully included hearsay any guide Bros, own the total know whose efforts went not aware of. inquiry ascertaining of the items for this law- say. compensatory services —was the knowledge, delegated any part dealt with the stan- Orloski at 67-69. The item- provide awarding I was my — conclude class ac- (emphasis should have $9,000, hearsay objec- attorney assisted. At obligated you damages, of fees to basis into issue of do added). $9,000? degree. and same don’t been you? evi- for jury’s amount verdict this error was held least only liable because he was alone an improper responsible amounted to assessment found for the initial use of ex- $9,420.9 City of cessive force when the Blacks’ car was first at 10th stopped Lehigh Streets. Gable
B. only culpable was more because he not verdict, responsible encouraging Stephens’ From it is use clear that force, disregarded but also the “car after the trial in- chase court’s gun struction that incident assessed [that] accentuated] prolonged] initially each based on that the trauma inflicted defendant defendant’s violations,10 Stephens.” ... Officer Id. at 26. Fi- ap- constitutional instead *21 nally, greatest the the portioned damages liability based on its had estimate of each it filing defendant’s financial because caused the arrest the resources. is It damages Black, that any charges against inconceivable of unwarranted Mr. attributa- embarrassment, humiliation, to by having indirectly ble Gable his which to caused led Stephens did, $9,420 to act as he could be greater anxiety, attorneys’ mental and the in than damages the by inflicted $500 Ste- fees. phens It is himself. even more inconceiva- however, jury’s interrogatories, The City, liability ble that the only whose can be the clearly responsibility show for vari- actions,
based on Gable’s injured could have parceled among ous events cannot sobe out plaintiffs the more than did. Gable post the defendants so as to offer a hoe brief,
In their attempt the Blacks ex- to rationalization apportionment of the of plain jury’s strange by the verdict artificial- damages. jury expressly found ly apportioning among the three defendants both were for the and Gable liable wrongs the Ap- various done them. against excessive force plaintiffs See used the said, pellees’ Stephens, Brief at 25-27. it is Lehigh at 10th and three Streets.11 All problem concerning An damages 9. additional exists thus could not be included in the If, damages attorneys’ any the award theory presented by of fees. assessed here under asserts, Maj. op. as the plaintiff. police regulation causal link between the (and liability jury, charge conduct hence the of In its the court indicated City) depends Gable and the on particular the fact that that “a defendant can be held liable charges learning additional damages filed after only damages arising for out of complaint, only of Black’s it is manifest you deprivations those constitutional which damages charges, attributable to the additional respect particular a found defendant.” charge, and not to the initial could be assessed Trial Tr. Vol. 11 at 109. against City. particular, Gable and the In at- torneys’ charge fees associated with the initial interrogatories 11. The read as follows: properly part against could not of award you Do find that Defendant [No. 6.] Q. those two defendants. Wayne Stephens against used excessive force charges Of the three additional filed Ste- Joyce Lehigh Plaintiff 10th and phens, carrying deadly weap- a concealed two— Streets on March 1977? dropped. on and terroristic threats —were A. Yes. charge, recklessly endangering third additional you find Do that Defendant 7.] Q. [No. person, apparently another went to trial at the Wayne Stephens against excessive used force charge aggravated same time the initial of as Lehigh at 10th Plaintiff Elwood Black guilty assault. After simple Black was found Streets on March 1977? recklessly guilty but assault not A. Yes. charge. endangering Trial Tr. Vol. 11 at 49-50. you Do find that Defendant Thus, [No. 16.] Q. charges all of the additional were dis- policy encouraging Gable had a Carson posed favorably to Black end of that Depart- Therefore, members of the Allentown Police trial. charges, after that date no fee other engage force ment in the use of excessive properly proved, if even as- could be performance as Yet, of their duties against City. sessed attorneys’ $4,500 Gable or the placed officers? bill before included charges Yes. A. which occurred after Black’s charges ap- trial had Do find that Defendant 17.] terminated. These were Q. Carson Gable’s [No. parently appeal encouraging mem- Black’s conviction A-D-l, charge, Department Exh. Police initial assault bers Allentown responsible damages.” for the An award punitive damages defendants were found against permissible filed Mr. only unwarranted when “the defendant finding was liability Black.12 No made knowledge acted with actual that he was following gun chase” violating federally protected right the “car or with Thus, anything, City, hav- disregard doing incident. reckless of whether he was ing responsible only one been found Id. so.” (as rather than constitutional violation two There no evidence this record to defendants), the other should have Gable, support jury’s conclusion that damages, least in been assessed the rather reg- promulgation his of the administrative addition, In is apparent most. than the ulation or in his attitude toward the use assessed Gable force, knowingly recklessly citi- violated (if no than should have been more not less zens’ I rights. constitutional As demon- than) primary those assessed opinion, strated in Part I-B of this case, Stephens.13 actor in this testimony at the purpose trial showed that observations, making these not do provide intend to invade the discretion with means which officer could avoid regard Here, damages. to the amount of inquiry performance, . into his but was mere- *22 by jury, findings concerning the its liability, ly prevent disciplinary proceedings to from already
had ranked the defendants to as interfering ongoing criminal cases. It culpability. respective usurpa- their It nois designed was by postponing to do so the jury tion the role of the to demand that complete. former until the latter were Ga- imposes when it damages, the remain ble testified that it had never come to his liability faithful to its determinations. any that fil- police attention officers were ing charges regulation. false because of the C. Trial Tr. Vol. 7 132. If is link any at there Desmond, In 102,106 Cochetti v. 572 F.2d the regulation between and the violation of (3d 1978), Cir. this court that “the (which not), stated rights constitutional there is punitive damage remedy must reserved be link is so attenuated that it could not ... for cases in which justify punitive the defendant’s con- As this award. court duct something amounts to Volz, more than a stated in Fisher v. 496 F.2d bare violation justifying compensatory (3d 1974): Cir. engage in being the use improperly apportioned the excessive force in 13. addition to performance their among defendants, damages duties as officers the the also were proximately Wayne caused improperly Defendant Ste- distributed as between the Blacks. phens to against use excessive compensatory force Plaintiff punitive damages and as- Joyce Black or Plaintiff Black Elwood at 10th against City sessed the in favor were assessed Lehigh Streets on March 1977? Black, despite of both Mr. and Mrs. the fact A. Yes. City injury that the was Mr. found liable for to App. at 10-12. only. Interrogatory quoted See No. supra. City Damages against in note 12 the in interrogatories
12. The read follows: though favor of Mrs. Black even were assessed you Do Q. [No. find 14.] that Defendant charged. she was never arrested or At promulgated implemented Carson Gable rejected the district the the court notion that regulation an proxi- administrative which City injured had Mrs. Black and sustained mately Wayne Stephens caused Defendant objection testimony by Mrs. Black concern- charges against arrest and file unwarranted ing allegedly charges by harm her caused Plaintiff Elwood Black? filed her 11 at husband. Trial Tr. Vol. A. Yes. appear 58-60. The court noted: not “This does Q. [No. Do find that 15.] Defendant deprivation by to be a found under the City promulgated imple- Allentown Also, interrogatories. speculative. is it It is mented an administrative which Furthermore, simply too far afield. it not is proximately Wayne caused Defendant Ste- pretrial in articulated the final order.” Id. at phens to arrest and file unwarranted Despite ruling, this the court nevertheless against Plaintiff Elwood Black? $30,000 City entered A. Yes. favor both Mr. and Mrs. Black. App. at 11. majority be superior police may proce- sub- concedes that an identical A officer damages jected punitive because of Supreme dural default did not bar officer wrongful acts a subordinate deciding punitive damages Court from superior is there no evidence Newport. majority, question in how- personally participated ever, officer ordered or attempts distinguish Newport acts, or knew or should have arguing that taking place were known the acts case, sharp distinction to this where [i]n acquiesced in them. the issue was neither raised nor briefed prior argument lower court nor demonstrated, Similarly, as I have court, Newport question this fairly record cannot be read to any indicate municipality may whether held liable part promoting on of Gable punitive squarely “was use of excessive As force. shown Part presented complete decided trial above, expected I—C Gable his officers to resort, first record court of only use necessary force when to overcome argued by both sides the Court resistance. Nowhere in the record there sanctioned, Appeals, fully and has been be- evidence Gable much briefed fore knowingly recklessly encouraged, less this Court.” - use of excessive force. If a chief (quoting Newport, Id. supra, U.S. cannot tell his officers to use when force -, 2754). Having highlight- necessary proper to effectuate law en- cases, ed difference between the two exposing pu- forcement without himself to proceeds majority to hold for this rea- nitive civil then liability, we have indeed son alone that here should be de- departed from everyday reality. immunity Newport nied the mandates. If puni- Gable cannot be found liable for believe the has turned a blind *23 damages, tive City, then neither the can eye Newport to the essence of the decision liability solely whose based on Gable’s and instead elevated a collateral considera- event, however, In any conduct. the award opinion tion in to a of the Court’s matter punitive of damages City the must controlling significance.14 What is control- be light stricken in the Supreme of Court’s ling Newport in is the central Court’s hold- holding recent in of City Newport Fact ing municipalities that are immune from Concerts, Inc., supra, punitive damages punitive damage in 1983 liability section against municipality are not available a in legal like is a purely cases this one. This actions under 42 cannot U.S.C. 1983. § issue; the rec- municipal immunity blanket agree majority’s with the ignore decision to ognized depend not on by the Court does the the Maj. clear mandate of Court. See witnesses, facts, or credibility the the of op. at 184 n.l. usually special other matters within the Thus, competence the Despite the of trial court. while unequivocal of the instruction Court, Supreme views the district court on the issue the on the of relies the object might helpful fact the be City immunity very defendant not other did situations, punitive to the district the this case damage court’s context of their charge ground significance impor- municipal greatly immuni- reduced ty Indeed, thereby waived defense. The tance.15 had the district court in novelty legal applicability 14. the Indeed had the 51 been issue at stake Rule counsels Newport, very the central issue in I doubt unconstricted review. at-, granted much that the Court would have certio- -U.S. 101 2754. S.Ct. opinion: rari. As the Court in its noted good in as a 15. Where this court has been We undertake here in review order resolve position question of law or mixed to decide availability punitive damages, ... the court, question was the of law fact as trial scarcely just appropriate it or would we have hesitated do so without re- never determining our confine review to whether See, g., manding deferring to court. e. might sufficiently egre- error that exist is Rasool, Virgin Islands v. Government gious qualify very under Rule 1981); (3d United F.2d Cir. question charge point case of munici- at this greater considered involves no cost pal adversely it liability and decided than would have been incurred had the City, I this court would suggest that have point been raised at trial. had summarily reversing no reluctance in Contrary to majority’s suggestion, authority that determination on the Rule 51 “is not inexorable.” Hoffman v. Newport. It is thus irrational to affirm the Inc., (3d Sterling Drug, 485 F.2d punitive damages award 1973). Indeed, Supreme Cir. Court in ground the district court did not Newport emphasized that review of unchal- opportunity question have an to consider a lenged jury is not restricted to instructions would, light on which its views New- - “plain instances of error.” U.S. port, have been irrelevant. This point is -, at 2754. Our court as underscored the fact that when the puni- recently as this month in an en banc deci- was specially tive issue briefed Supreme sion characterized the Court’s dis- court, parties before this did not even “reaffirming] cussion in as Newport argue immunity question. the substantive inherent power of the court to consider It is true that Rule 51 of the Federal legal required by certain issues inter- provides Rules of Civil Procedure that “[n]o justice ests of despite the failure of the party may assign as error the giving or the parties preserve them in timely fash- give failure to an instruction unless he ob- Bowers, ion.” Weaver v. F.2d jects thereto before the retires to con- (3d 1981) (en Indeed, banc). Cir. verdict, stating sider its distinctly mat- court en banc went on to state: “We be- ter objects to which he grounds and the lieve that in unusual circumstances objection.” his But that Rule no more re- appeals power courts also have inherent quires us to find waiver here than re- although timely to reach issues raised quired Supreme Court to find it below. We previously have done so when Newport. In Newport, the Supreme Court the occasion (citations warranted.” Id recognized that purpose of Rule is51 to omitted). Thus, the majority’s position encourage counsel to correct errors in the in refusing to acknowledge explicit
judge’s charge
ends,
before the trial
while
holding
Newport
instruction and
is not
these errors can still be rectified. The Rule
only in
Supreme
conflict with the
Court but
seeks to avoid situations in which an error
is also contrary
expres-
to the most recent
in jury instructions would necessitate a new
*24
sion of our court en banc.
trial, one that could have been prevented
had the error been brought
judge’s
to the
Supreme
rilling Newport,
Court’s
attention before began.
deliberations
Congress
taxpayers
did
intend
paying punitive
bear the burden of
dam-
I do not see
policies
how the
behind Rule
ages
1983,
in cases under section
established
51 would be
by
furthered
finding a waiver
principle
ju-
a fundamental
of section 1983
by
City
Here,
jury,
this case.
risprudence.
unjust
It
City
would be
pursuant
instructions,
to the judge’s
ren-
ignore
principle
dered
here. As our court
separate
against
verdicts
City
as
recently
stated in United States v. 564.54
compensatory
punitive
damages. A
holding
Land,
983,
(3d
Acres of
576 F.2d
987
punitive damages
Cir.
against the
City
1978),
506,
are
grounds,
barred
rev’d on
simply
would
result in
other
441 U.S.
strik-
ing
$10,000
1854,
punitive damage
(1979),
99 S.Ct.
banc),
denied,
911,
2825,
See,
cert.
442
g.,
Paper
U.S.
99 S.Ct.
of course.
e.
Scott
Co. v. Scott’s
Indeed,
(1979).
Gold, Inc.,
1225,
207 Therefore, error highly prejudicial except fundamental to the verdict .. . and our failure to consider the Stephens, error Detective a jury determi- miscarriage justice” which, would result in a record, nation on this binds us on (footnotes omitted). court appeal, respectfully This has fre I dissent.
quently applied princi and reaffirmed this (citing cases);
ple. See id. at 987 n.3 Mor SUR PETITION FOR REHEARING Branca, 1252, ley (3d v. 456 F.2d 1253 Cir. petition by rehearing appel- for filed 1972) curiam); v. (per Ratay Lincoln Nat’l lants having in the above entitled ease been 209, Co., (3d Cir.), Life Ins. 378 212 F.2d judges submitted to the participated who denied, 973, 472, cert. 389 88 U.S. S.Ct. 19 the decision of this court and to all the (1967); L.Ed.2d 465 Wilson v. American other judges available circuit of the circuit Co., (3d Chain & F.2d Cable service, in regular judge active and no who 1966). Cir. concurred in the having decision asked for The general rule an appellate is that rehearing, and a circuit court apply must law effect judges regular the circuit in active ser- decision, time it renders its unless so doing having rehearing vice not for by voted injustice. would Bradley result in manifest banc, court in petition rehearing Bd., 696, 711, v. School 416 U.S. 94 S.Ct. denied. 2006, 2016, 40 (1974); L.Ed.2d 476 v. Thorpe Auth.,
Housing
281-82,
U.S.
BY
I STATEMENT
JUDGE ADAMS
(1969).
S.Ct.
L.Ed.2d
SUR
would follow the
DENIAL
FOR
clear dictates of the Su-
PETITION
REHEARING
preme
punitive
Court and strike the
dam-
Judge
rehearing primar-
Adams votes for
ages
City.
assessed
ily because he is concerned that
the award
punitive damages against
may
by City
Allentown
be barred
of New-
IV.
Concerts,
port
Inc.,-U.S.-,
Fact
majority’s opinion
Because the
is flawed
(1981),
rulings record, on this we are promulgating DENIAL PETITION FOR precedents that conflict es- principles REHEARING tablished this court and the Supreme Court. Judge grant Garth the petition would rehearing for expressed the reasons in his Accordingly, would direct district panel dissent. court to enter favor of Police *25 Chief Gable and the City of Allentown not- Judge grant Weis the petition would withstanding the jury’s verdict. At rehearing in banc. very least, I would remand a new trial as to those liability two defendants on both damages. I would do so because
evidentiary rulings which I have discussed
pervade plaintiffs’ phases both case as- City, Gable both that,
pects are in my opinion, so intertwined
newa trial both liability
required notwithstanding the
verdict is not ordered.