Joe Morgan v. Bill Woessner, and Clay Searle Los Angeles City, (Two Cases)

America, Appellee, STATES UNITED

v. MELCHER, Acting Director William H. al., Missouri, Revenue, et State

Appellants. No. 91-2206. Appeals, Court of States United Circuit. Eighth July 1993. States Su from the United On remand — U.S. -, Court, preme judgment opinion and 124 L.Ed.2d 16, 1992, September of this court filed The mandate are vacated. issued 17, 1992, hereby November recalled. MORGAN, Plaintiff-Appellee, Joe WOESSNER, Defendant, Bill Clay Searle; Angeles City, Los

Defendants-Appellants Cases).

(Two 91-55728, Nos. 91-55863. Appeals, United States Court of Ninth Circuit. July 9, Argued 1992. and Submitted 15, 1992. Opinion Sept. Filed Opinion June 1993. Withdrawn Opinion Filed June Hokinson,

Thomas C. City Sr. Atty. Asst. Helgeson, and Richard M. City Atty., Asst. CA, Angeles, Los for defendants-appellants. Wilson, William A. Barnes and Edwin J. Jr.,' Erickson, Beasley, Wilson, Hewitt & Oakland, CA, for plaintiff-appellee. NELSON, Before: SNEED and D.W. ROLL, Judges, Circuit Judge.* District

ORDER opinion September 15, 1992, filed 629, withdrawn, and the attached

opinion and dissent are filed in its place.

OPINION

SNEED, Judge: Circuit I.

OVERVIEW Morgan, Joe ex-professional baseball commentator, player brought and television Angeles police- section against Los suit Roll, *The Honorable John M. United designation. States Dis- Judge Arizona, sitting trict for the District of Testimony Morgan’s the A. Joe Bill and Woessner Clay Searle

men with associated for harm Angeles City of Los 15, 1988, Morgan was at Joe On March Ange- Morgan at Los stop of Searle’s Officer He flight to Phoenix. waiting for a LAX (LAX) in March Airport les International area, chatting gate time in the passed the trial, found 1988. At the first recognized him. At some people who unlawfully detained. Morgan not been had to make during layover, he decided point his however, court, granted Mor- The district waiting bags Leaving at the phone call. his notwithstanding judgment for a gan’s motion area, phone banks about to some headed he (JNOV) it a new trial because the verdict According Morgan, while away. forty feet Morgan was un- stop of Searle’s found grabbed his dialing, Agent Searle he was matter of law. aas constitutional Morgan around. turned him shoulder trial, in- the district At the second Searle insist- he wanted. asked Searle what be- the initial contact jury structed traveling another Morgan was ed that was unconstitu- and Searle tween that he was Morgan responded person. tional, determine and instructed alone, again what traveling and asked subsequent arrest Morgan, Searle According problem was. suffered harm lawful and whether “I’mof to the effect responded with words conduct, any unconstitutional with connection you’re part a investigation doing drug and a state law claims Morgan’s and to consider alone; again he was Morgan said of it.” battery, and intentional imprisonment, false Morgan “with this was Searle insisted distress. of emotional infliction coming me.” “you are with told him guy” and issues, and of these Morgan on all found coming I with replied, “Why am Morgan $90,000 in com- total of Morgan a awarded making a anything. I am do you? I didn’t $450,000 in damages another and pensatory Morgan that not tell Searle did phone call.” City of and the Searle punitive damages. go. he was free to challenge the They appeal.1 Angeles Los punitive grant of JNOV identification. Morgan for Searle asked challenges other awarded, and several luggage raise in his Morgan replied that was ruling on court’s concerning the district away. Morgan took forty approximately feet evidentiary matters. We instructions and and Searle luggage, his step toward remand in and part and reverse him, affirm in “I will upper torso told grabbed his and damage award. punitive part the with ground you if don’t come put you on the after this ex- Morgan testified that me.” II. up and said to the bystander came change, a effect, play- Morgan, baseball “that’s Joe FACTS er, respond- identify him.” Searle and I can case, district presiding In over hostility, flashing his identification ed with conflict- seriously presented court was bystander to back off. warning the precisely took of what ing factual accounts he that moment that at Morgan testified Officer Morgan Mr. place between “Well, point frightened: began get to JNOV, howev- granting Searle at LAX. that, you Before very nervous. ... I became even on er, concluded that the district ‘Hey, know, saying, standing up was kind account, I Officer the basis the defendants’ my get Let me go you. to with I don’t want Morgan was unconstitutional stop of Searle’s whatever, very hos- was but he I.D.’ conflicting or Because matter of law. as a if I did it didn’t matter felt like tile.... I ques- relevant to very much accounts are some- going to do- my He was grant have I.D.... the district court’s of whether tion me_ him, ‘Okay. to I said thing as to the second- to as well proper, was JNOV ” According go?’ tome damage you want Where do ary question of whether by pointing responded necessary Morgan, to Searle find it justified, we were awards Morgan turned As Morgan’s over shoulder. in some detail. each discuss account by stipula parties. tion of the Woessner was dismissed 1. Defendant direction, toward that grabbed Searle him Searle saying Morgan, “Come along. behind, around the neck from forced Morgan Come with us. Come with us.” Morgan floor, and handcuffed him. responded, “No am going. Leave me alone. I get my want to identification.” Morgan While Ac- ground, was on the Agent cording Ruybalid, Searle up insistent, Woessner man, came with another Tony repeating ‘You are coming Floyd. As with us. approached, Forget Woessner Searle it. You are him, coming asked me, right “You us saw him swing at now.” didn’t you?” According Morgan, one of the offi- Ruybalid moved in said, closer and “Hey, Floyd cers asked if Morgan “was the guy you what are doing? That’s Joe Morgan the you?” that was with Floyd answered no. famous player.” baseball Searle responded pulled Morgan Searle feet, to his led flashing his I.D. and saying, off, “Back concourse, him down the past waiting Ruybalid narcotics officer.” testified that at area Morgan where just had been signing this time was not doing anything autographs. they passed As Morgan’s lug- threatening violent, but that Morgan’s de- gage, Morgan again asked to be allowed to defensive, meanor was bothered, angry. get his placed identification. Searle his hand Ruybalid testified that Searle was very angry over mouth and nose and led him and his tone of very stern, voice and that into a small room “nursery.” marked Mor- Ruybalid felt he was being ordered to leave gan testified that he difficulty had breathing person area authority. totally and felt out of control. Inside the Ruybalid away, backed but continued to room, nursery repeated Floyd situation, monitor the remaining within fif- person was not the he was with. Morgan twenty teen or feet from Morgan and Searle. testified that Searle threatened to report to He did not see Morgan floor, taken to the press that he part awas of a narcotics but he heard the noise caused by that fall. investigation, and offered to Morgan release He testified prior noise, that to that he did Morgan if promise forget to what had not any yelling, hear screaming or swearing. happened. Morgan responded, ‘You do what When he fall, heard the noise of Ruybalid do, you have to and I’ll do what I have to do.” approached men; he pull observed Searle After a few moments of further exchange, Morgan to his feet and away, lead him hold- Searle removed the handcuffs and allowed ing his hand over Ruybalid mouth. Morgan to leave. Morgan testified that walked reluctantly but According to Morgan, at during no time resist, did not and that he any did not use this course of events did he make ag- profanity or scream. gressive or physical hostile gestures toward either Searle or Woessner. He testified that C. Testimony Defendants’ resist, at no time did he use profanity, or 15, 1988, On March and Searle Woessner scream. were on a routine patrol narcotics at LAX. They Tony Floyd, man, B. observed Ruybalid’s Richard a black Testimony moving rapidly through the concourse. Ruybalid, Richard an individual not other- Floyd had a carry-on bag appeared which to wise associated with Morgan, was on the be half-empty. Floyd eye made contact with plane same into LAX as Morgan, and was Woessner, Searle and away. and then looked waiting for the same connecting flight to To agents, appeared he to be nervous. Ruybalid Phoenix. had recognized Morgan Finding these suggestive actions of narcotics flight, but did not speak to him. involvement, Searle and Woessner to decided Ruybalid testified that he was making a call question Floyd. from phone same bank Morgan as when approached Searle Morgan. Ruybalid’s at- Searle and Woessner identified themselves tention caught by was a “heated to Floyd, conversa- and him told that he was not under Ruybalid tion.” approached to within ten arrest and that go. he was Floyd free to feet, and witnessed the agreed confrontation be- to talk They them. with asked him tween Morgan and Ruybalid Searle. identification, heard but he They had none. by repeatedly yell- ticket, anything, and produced hadn’t done and he a his to look at asked volume, and louder “You’re not ing, in a name other at louder issued one-way cash ticket that he hand- permission police officer.” Searle stated They obtained Floyd. than Morgan, and carry-on bag; they police identification his ed his person his search They it and handed it back. Morgan then that examined clothing and toiletries. only found room and conducted Floyd to the men’s took that a citizen point, At that Searle testified nothing revealed which pat down search forward, stepped but that he did not remem- carry- Floyd was that illegal, did reveal but offering identify Morgan. Searle him ber initially Although Floyd ing ticket. a second Ruybalid his only that he showed testified alone, eventually traveling he claimed to be police that he was a officer. and told him I.D. companion. a travel he had admitted that Morgan that he wanted Searle then told person’s remember the second Floyd did not him to see if he was Morgan go with name, the second agents but told gestured traveling somebody, to- with right behind him. be traveler should Agent direction of Woessner. ward the looked Floyd the traveler agents what asked not believe Mor- testified that he did Searle like; “he looks like responded that Floyd moment, and that go at that gan was free to me.” required to Morgan was he believed that exchange Floyd, the Based on their Morgan kept him some identification. show Floyd drug was agents concluded repeated his asking “why, why,” and Searle companion was the his courier and that request: “mule,” actually carried the person who to him I wanted kept explaining I Searle: Floyd, and handcuffed drugs. The officers somebody, traveling with to see if he was to look for the with him left the bathroom walking me. eventually he starts out, stepped they they As second traveler. about three or four probably take We walking in their direction. observed out, before he starts steps before he freaks The officers testified yelling. screaming and then unusually. The running, or dressed said, you “I want to Question: Okay. So Floyd Morgan to was that thing that linked you to or to take you to some location take officers found black. The both men were identify you?” somebody can so Floyd had said that significant because said, go me you like to with Searle: ‘I’d him, like traveler looked the second traveling person with this you’re if to see to work couriers tended experience their all I investigating. That’s want we’re group. Ac- of their own ethnic people you together and to see if do. I want Woessner, and when Mor- cording to Searle this,’ screaming and he’s then we can solve twenty of the trio he gan got within feet top lungs, his but then “why,why1 at the them, stopped, and then directly at looked step me. take a walking with I’d he starts walking abruptly around and started turned me, step with and we he’d take a and from he had come. in the direction which I steps where eventually take some toward approached Morgan, and Searle followed Floyd. and Mr. Agent last left Woessner telephone standing facing a him as he was you start- Question: point, So at this were According to in his hand. with the receiver phone bank? ing the area of the to leave shoulder, Searle, Morgan tapped on he Yes, did. Searle: we card, said, and his identification displayed how far were Question: Okay. And about immediately Morgan police “I’m a officer.” you phone bank when you from the you are.” give a fuck who replied, “I don’t again? stopped identification, Morgan Searle asked When away maybe got 10 feet Probably Searle: “I have to show by saying, don’t responded eventually. I have identification.” you shit. don’t 138-39. Deposition, E.R. at Searle conducting a Morgan that he was Searle told toward Woess- Morgan walked Searle and that he wanted investigation, and narcotics Searle, According after a any- Floyd. ner and traveling Morgan was if determine out” and be- Morgan “freaked he few moments by stating that Morgan responded one. gan gesturing wildly, screaming top at the of City of Los Angeles as defendants. Morgan lungs. alleged his Woessner testified falsely that he could that he detained, had been Morgan yelling imprisoned by hear from some arrested and distance. Searle and Woessner, Morgan eight Both officers brought testified that was wav- claims under ing wildly; his federal arms Searle had to and state duck to law. hit, getting avoid point and at Trial April was held in 1990. The record

bumped by Morgan’s body. grabbed Searle indicates that from beginning, the district Morgan they around the chest and fell to the court believed Morgan’s detention was floor; up top Searle ended on of Morgan. illegal However, as a matter of law.2 Morgan Searle testified that he put told court chose to submit question back, his hands behind his Morgan jury because it feared that a directed verdict cooperated. got Searle then handcuffs from on that issue would influence the jury’s delib- Morgan. Woessner and cuffed erations regarding whether Morgan had been aggressor subsequent physi- Morgan Searle began testified that then cal altercation and thus whether he was screaming “Help, help” top of his falsely imprisoned, regarding lungs. concourse, As walked down justified.3 deliberations, were After put Searle testified that he his hand over jury Morgan’s found that constitutional Morgan’s up, mouth to shut him because he rights had not been violated because the Morgan’s was afraid that screaming would detention was lawful. attract attention and that “he didn’t want fight another somebody to break out with B. JNOV and Second Trial jumping else screaming.” because he’s Morgan moved for a JNOV and a new Morgan Searle did inform that he was trial, alternative, or in the asked that rights. under arrest or read him his Once in finding district court make a damages. as to room, nursery Searle Morgan released above, granted As noted the court a JNOV Floyd after verified that was not his and the motion for a new trial. The second companion. February

trial was held in 1991. After both parties case, put had on their the district III. court instructed the a second time. time, This the court stated that the court had PROCEDURAL BACKGROUND already decided that the initial contact be- A. Trial and Verdict tween Searle and was a seizure un- events, Morgan Based on this course of supported by suspicion, reasonable complaint filed the Central District of therefore that Searle had violated California, Searle, Woessner, naming deliberations, rights.4 constitutional After deliberations, During jury's first I didn’t tell the that.... knew that if I jury illegal remarked to told the counsel: that there had been an Morgan detention of Mr. that that would—or just stop you Let me for one I minute. left one I at least believed that that would dictate the is, thing ... out and that that under no circum- remainder—the outcome of the of remainder permitted jury I stances would have to de- heavily weight the case or at least it would so any possible cide otherwise. There isn't other likely they on case one side that it is stop illegal. conclusion but that the plaintiff come in and find for the on the rest of E.R. at 7. And later: credibility the case because it is the clearest you give I think will both have to a lot of you crisis here in imagine. case that could ever thought going to what we are to do because slightest there is not the doubt here about the E.R. at 2. portion of the case deals with that detention. Now, agree I will that there is a factual issue gave following 4.The district court instruc- made, after the detention is but there is no tion: up point. factual issue to that Morgan's One of claims is that he was Mr. E.R. at 10. process by detained Officer Searle without due law, of his constitutional in violation 3. The court observed: rights.... determined, already prior I think the mistake made in this case was that in has The Court detention, case, (1) illegal I found that there was an and proceedings Officer in this that Searle 1252 for Morgan support a verdict the nonmov- a verdict on his evidence to returned should be rights ing party.” state Id. Evidence viewed civil and law claims.

federal 1) Morgan light nonmoving most favorable to the that had in the Specifically, it found: party. as a result of his unlaw- Id. suffered actual harm 2) detention; that after the initial deten- ful directing Morgan, a verdict for the dis- tion, violated constitutional Searle concluded, law, matter trict court as a probable by arresting him without rights Morgan had been “seized” within the mean- him, against using excessive force cause and Amendment, ing of the Fourth and that the harm; 3) causing Morgan actual and seizure was unconstitutional because there Morgan, committed falsely imprisoned Searle suspicion support was no reasonable it. intentionally inflicted battery Morgan, on and legal separate- address these We conclusions (the Morgan on state law emotional distress ly. claims). Morgan damages awarded 1) claim one— against Searle as follows: Morgan Seized Was $150,000 $10,000 pu- and in compensatory in Stops under the Fourth Amend 2) $40,000 claim in damages; nitive two— First, police categories. ment fall into three $150,000 compensatory and in dam- may stop questioning citizen for at 3) $40,000 ages; compen- in and claim three — time, long recognizes that so as that citizen (awarded against satory defendants Searle Bostik, he or she is free to leave. Florida v. $150,000 City Angeles) of Los - U.S. -, -, 2382, 2386, 111 S.Ct. punitive damages. (1991). brief, Such “consensual” L.Ed.2d 28, 1991, February the district court On exchanges supported by any need not be judgment awarding Morgan a total entered a engaged in suspicion that the citizen is $90,000 compensatory stops wrongdoing, and such are not consid $450,000 punitive damages. The district Second, police may ered seizures. Morgan attorney’s also awarded fees brief, investigatory stops. “seize” citizens for § pursuant U.S.C. 1988. Defendants consensual, stops not This class of is City Angeles appeal. of Los Searle and stops supported by must “reasonable such be Ohio, See, e.g., Terry suspicion.” 392 U.S. IV. 1, 20-22, 1868, 1879-80, 88 S.Ct. 20 L.Ed.2d Holzman, (1968); States v. United DISCUSSION (9th Cir.1989). Finally, po F.2d may arrests. These Judgment Notwithstanding stops lice be full-scale A The the Ver- course, seizures, stops, and must be dict supported probable cause. Adams v. grant review a de We JNOV Williams, 143, 148-49, County Angeles, Meehan v. Los novo. (1972). 1921, 1924, 32 L.Ed.2d 612 (9th Cir.1988). “A directed permits contend that Searle proper where the evidence Defendants did verdict seize or detain until only one reasonable conclusion as ver after dict; allegedly if became violent and tried to “take a inappropriate it is there is substantial Morgan prior unlawful Mr. the time that The Court has determined did detain any physical instructing you between the altercation arose that the detention issue and in two, (2) justified determination, detention was not that the Court has made that the Court suspicion part officer's reasonable any view whatsoever as to does not indicate Therefore, point plaintiff has that time. any party to a verdict on which is entitled rights were established that his constitutional your in the case. You must reach other issue regard. particular is violated in this one It impartial fair and verdict on those issues own you if this violation however for to determine by regard reached without to the conclusion proximate cause of to Mr. was the respect to the unlawful deten- the Court with damages. Morgan, and the amount of those tion issue. plaintiff you if has It is also for to determine E.R. at 400-401. evidence, proved, by preponderance a of the rights of the other that his were violated ways specified in his other claims.

1253 swing” point, 724, (9th Cir.1981) (citations at Searle. Prior to that 726-27 omitted). contend that because Searle merely was inquiry largely This is a factual questioning Morgan Morgan was free to one depends which totality on the of the leave, the encounter was a consensual ex- circumstances. granting JNOV, Id. In a change not requiring either suspi- reasonable however, the district court found that even probable cion or They cause. contend that as construed in the facts defendants’ although Morgan was indeed seized after he favor, Morgan was seized well before any violent, allegedly became the seizure was not alleged physical altercation place. took We justified unconstitutional because it was agree. that, Based on the events according Morgan’s conduct at that point. Defendants to Searle’s testimony, own place took before also that a contend determination of whether Morgan allegedly out,” “freaked we find that Morgan requires was seized a resolution of the district court quite justified was in find- dispute, facts in and that this issue therefore ing Morgan that “reasonably believed” that should have been left jury. for the he was not free to leave. considering In stop whether a is a definition, By a “consensual” ex merely or “seizure” a exchange, consensual change police between and citizens cannot Court has observed: place take in the absence of consent. When person only [A] is “seized” when means citizen expresses his or her desire not to physical force or authority, a show of his cooperate, questioning continued cannot be freedom of movement is restrained.... case, deemed consensuál. In this according long As person as the questions to whom himself, to Searle Morgan never consented or are put disregard remains to ques- free conveyed otherwise willingness cooper to away, tions and walk there has been no Rather, ate Searle. Searle testified that upon person’s that liberty intrusion pri- approached he after Morgan, Morgan indi vacy as would under the Constitution re- cated in no uncertain terms that he did not quire particularized some objective want to be bothered. Despite Morgan’s un justification. willingness, Searle insisted that Morgan an Mendenhall, United States v. inquiries swer his and demanded that Mor 553-54, 1870, 1876-77, gan L.Ed.2d come with him. We find that (1980) added). Thus, (emphasis unequivocal the “es- expression of his desire to be left inquiry sential person whether stopped alone demonstrates exchange be reasonably believed that he or she Morgan was not tween and Searle was not consensua free Patino, leave.” to United States v. exchange l.5 Because the was nonconsensu- Morgan's 229; 5. In expression Patino, addition to 727; of disinter- 75 L.Ed.2d 649 F.2d at U.S. v. est, support other factors lend Johnson, to our conclusion Although 903 F.2d an Morgan reasonably believed he was not free officer’s failure to advise a citizen of his freedom First, to Morgan leave. Searle’s insistence that away dispositive to walk question is not questions may answer his have indicated to Mor- whether the go, citizen he knew was free to it is gan cooperation compelled. that his was See significant another indicator of what that citizen Mendenhall, 1877; 446 U.S. at 100 S.Ct. at reasonably believed. Nygaard, see also Martinez Fourth, Searle, according to Searle and Mor (9th Cir.1987). gan "maybe traveled feet” in ten direction Second, Searle testified that he believed that Floyd Morgan Woessner and before "freaked Mendenhall, Morgan go. was not free to See request out.” An officer's that an individual U.S. at 554 n. 100 S.Ct. at 1877 n. 6. Al- accompany him may to another location tend though subjective an officer's ordinarily belief is indicate that reasonably the individual believed question irrelevant citizen be- away. Royer, that he was not free walk go, that he or she is lieves free it becomes U.S. Finally, 103 S.Ct. at 1327. Searle if there relevant is reason to believe that the made statements which intimated investi conveyed belief officer's was to the detainee. In gation Morgan, focussed on case, and such statements this repeatedly fact that Searle demand- "easily person could induce a reasonable to be Morgan accompany heightens ed that him cooperate lieve the failure to would lead conveyed likelihood that Searle his belief that Berry, formal go. detention.” States v. not free to United Third, 1982) (en banc). Searle did F.2d case, not advise Cir. that he was under go. arrest and he conveyed Morgan that was free Searle to he that was the .to 491, Royer, Florida specific U.S. target S.Ct. ways. of Searle’s concern in two travelers, subject would be who Morgan ably find innocent al, that hesitate we do not were the court virtually random seizures allegedly he well before seized was indeed foundation as there that as little correctly to conclude district The became violent. justify could a seizure.” Id. seized within the in this case Morgan was was found that Amendment. meaning of the Fourth justifying the seizure of factors Floyd, put which Morgan tip from were Supported Not Seizure 2. The Was on the lookout agents Searle and Woessner Suspicion Reasonable men, Morgan the fact that for all black Morgan that was Having determined directly them and turn appeared to look at seized, question now turn to in fact we around. These facts even fall short abruptly supported by rea was the seizure to estab- of the factors treated as insufficient bottom, not. At suspicion. It was sonable suspicion reasonable in Reid. There is lish Morgan for two reasons: stopped Searle Morgan that was dressed in no claim essentially made all black Floyd’s tip, which manner, hurrying that he was unusual supposed fact that suspect, men carrying that he through airport, was them, turned and walked Morgan looked at nervous, unusual, or anything that he seemed likely that be to find away. No court would normally relied that of the other factors supported a seizure. suspicion reasonable justifying investigatory stops at air- upon in facts of this case between the The contrast agree Accordingly, we with ports existed.6 Supreme facts of a case which suspi- no reasonable the district court that suspicion existed no reasonable Court found Morgan. justified cion the seizure of Georgia, 448 U.S. illuminating. In Reid v. entirely proper. The JNOV was (1980) S.Ct. 65 L.Ed.2d curiam), no reasonable the Court found (per stop of police based their suspicion where Damage Punitive Awards B. 1) defendant had on the facts that: defendant challenging in this 2) city; drug source defen- from a arrived case, arguments. defendants advance two early morning, a time in the dant arrived First, they contend that the award amounts diminished; activity is law enforcement

when process. of due excessive and violative were 3) tried to and a second traveler defendant Second, they argue and trial court they traveling the fact were conceal law to consid- required were under California 4) luggage had no other together; defendant deciding 5) Searle’s financial worth in er Officer re- bag; and defendant than a shoulder punitive dam- the amount of the state law in the di- peatedly over his shoulder looked con- ages. look first to the defendants’ We Id. at of the other man. rection Court, then under tentions under federal law and these factors S.Ct. at 2754. For the state law. “very large category presum- described a 1325; First, Royer, 103 S.Ct. at see Morgan specifically 460 U.S. at that he was he told Here, Searle, Holzman, investigation, conducting and that he a narcotics 871 F.2d at 1501. also Morgan accompany him so that he wanted of time him to walk in the same amount it took Morgan traveling person with a could see if Morgan, Mor- could have walked over to over to Second, investigating. im- and more were tow, Floyd gan accompanied by Floyd. With exchange Ruybalid, portantly, even as taken a second or two to determine it would have characterization, communicated under Searle’s Floyd’s companion, Morgan was not subject he alone was the at all. not have been disturbed Again, exchange attentions. Searle’s readily was so avail- The fact that this alternative Morgan allegedly Ruybalid occurred well before may weigh Amendment calcu- in the Fourth able violent. became lus. factors, above In addition to the may hinted that courts consider Court has Supreme Court has which the 6. For cases in investigative employed methods whether "the stop, supported suspicion see found reasonable reasonably avail- the least intrusive means [are] Royer, 103 S.Ct. 460 U.S. at suspicion verify dispel in a the officer's able to 1, 3, Sokolow, United States v. determining period whether the of time” in short Fourth Amendment was (1989). 1581, 1583, 104 L.Ed.2d violated, although the relevant is unclear. which factor is extent to Damages 15, Based on 1. Punitive Federal one’s sensibilities.” Id. constitutional The applied Claims S.Ct. at 1043. Court there a analysis, Due Process which is described be- forth, As III.B. sets in Part the low, fairly to the elaborate system Alabama $300,- the second trial awarded Mr. imposing for and reviewing punitive dam- punitive damages 000 in on his section 1983 ages, comported and found that it with Due against claims Officer Searle. It is well es Process. “jury may punitive tablished that a damages under section 1983 either when a The Due Process Clause is a federal conduct defendant’s was driven evil mo constitutional standard applied to be in the intent, tive or or when it involved a reckless case of federal punitive as well as state dam or callous indifference to the constitutional age Although awards. the in Haslip Court rights County, of others.” Davis v. Mason discussed the Due Process Clause of the (9th Cir.1991) 1473, (citing Amendment, Fourteenth analysis the Court’s Wade, Smith v. 461 U.S. 103 S.Ct. applies equally under the Fifth Amendment. (1982)). 1640, 75 L.Ed.2d 632 There is The applied two Clauses should be in the problem imposition puni no with the of some same present manner when two situations decide, damages in ease. tive We must questions differing only identical in that one however, imposi whether the amount of the proscription against involves a the federal comports in tion this case with the Due Pro government and the other proscription cess Clause. against punitive damage the States.7 If state subject awards are to the strictures of the Haslip: Applies

a. Due Process to Puni- Constitution, there is no reason that the Damages tive employed by standards federal courts to re considered, recently Court in punitive damage view federal awards should Haslip, escape Mutual Insurance scrutiny Co. of the Due Process Pacific Life 499 U.S. 111 S.Ct. 113 L.Ed.2d 1 Clause. It should make no difference wheth (1991), the effect of the Due Process er imposition damages Clause of such punitive damages. on the award of After federal or state court whether on federal noting growing concern excessive or purpose state claims. For this there is awards, the Court said that “unlimited one principles Due Process Clause. The therefore, judicial Haslip discretion —or unlimited applicable, puni discretion fixing punitive for that matter —in the imposed by tive federal courts for damages may jar invite extreme results that violations federal law.8 Clause, know, Inc., Disposal, 7. The Due Process as all first 492 U.S. 109 S.Ct. appeared (1989), in the Fifth guiding Supreme Amendment Bill of L.Ed.2d 219 was the Rights. Only in the aftermath of the Civil War opinion Haslip apply Court and that did not appear did the Clause the second sentence of punitive damages based on violations of federal Section 1 of the Fourteenth Amendment. Ac Upon law. further reflection we have deter- cording Ohio, Representative Bingham John Browning-Ferris mined that it is not In- Thirty-Ninth Congress member of dustries; provides guidance in this vola- Amendment, which enacted the Fourteenth incongruous tile area. It would be for the Due Fifth Amendment Due Process Clause was the Process Clause Fourteenth Amendment to source of that Clause in the Fourteenth Amend apply to state law and the Due Globe, Cong. Cong., ment. 39th 1st Sess. 1034 apply Process Clause óf the Fifth Amendment not (1866). Bingham by many is said to be the punitive damages. to federal We made a false portion father of that of the Fourteenth Amend distinguished distinction when we on the basis of appears, ment in which Due Process Clause legal source of the award. As was paternity quite widely accepted. and his See above, purpose, said the text for this there is 46, 73, California, Adamson v. only one Due Process Clause. 1672, 1686, (1947) (Black, J., 91 L.Ed. 1903 Furthermore, Browning-Ferris Industries does dissenting). importance Of more to our issue is provide guidance requires this court Bingham frequently himself linked the Four dealing challenges puni- of a amount teenth Amendment’s Due Process Clause with damage holding tive award. The main Brown- the Fifth Amendment. ing-Ferris pu- $6 was that million Industries previous opinion, version of this we damage nitive award did not violate the Exces- thought Browning-Ferris Eighth Industries v. Kelco sive Fines Amendment. Al- Clause 1256 Haslip man enter jury properly did not is tried to a into the

The Court standard, single applied at a single constitutional calculus.” U.S. at date In level, reviewing punitive damages. for 111 S.Ct. at 1043.

stead, three-stage held that the the Court damage system comported punitive Alabama Jury by 1. the Instructions Trial Court 16-18, Id. at Clause. with the Due Process stage scrutiny, As the first of a trial sys In the Alabama 111 S.Ct. at 1044-46. jury proper the court should instruct on the tem, jury stage is instructions craft the first punitive damages. Haslip role of said of proper purpose punitive the ed to describe instructions should be fashioned to describe stage is the trial court’s damages.9 The next proper purposes punitive damages, the of so jury for excessiveness.10 review of the punitive that the understands that dam stage appellate court The third is review.11 ages compensate plaintiff, are not to the appropriate in the but three-stage approach A is punish punitive damage in this the defendant and to deter the context of the issues defendant and others from such conduct in case as well. Id. at the future. S.Ct. at 1044. Stages Three Process b. The Due us, performed the before the trial case Scrutiny by this task use of an instruction that focused award, upon discretionary the nature the not find that the Supreme The Court did defendant, punish the need to the system elements of the Alabama were neces- repetition to deter such conduct. process, merely need sary comport due but (1) Specifically, the instruction focused on Although adopt we a three- sufficient.12 Alabama’s, reprehensibility of of the stage approach similar to we need the conduct defen (2) dant, to the substance of its Ham- solely punitive damages the amount of not look Instead, mond factors. we note that which will have a deterrent effect on the light “general of reasonableness and ade- defendant of the defendant’s financial concerns quate guidance Although from the court when the case condition.13 the court could have Cooperative Tapley, though the Court considered the role federal Electric v. 546 So.2d (Ala.1989). involving punitive damage courts in cases We 376-77 still call them law, name, factors, and made it clear original awards based on state however. Hammond appeals

that a court of should review the district award, concerning it did court’s decision Supreme Haslip approved 11. The Court in say substance of that review should what the seven Hammond factors that Alabama courts use Haslip provides guidance that is neces- be. sary considering punitive damages. when 499 U.S. at dealing punitive damages when chal- 17, 111 S.Ct. 1045. These factors at are listed lenged grounds, or excessiveness on Due Process opinion later in this under Part IV.B.l.b.2. today employ we its full Due Process review. system, Although Haslip require the instructions 9. Under the Alabama does not that we fol- explain purpose punitive damages system’s procedure, certainly is that the low the Alabama punish compensate plaintiff, permits approach but not to it. The difference between the suggested by Judge defendant and deter the defendant and others we take and that Nelson Haslip from such conduct in the future. Id. at her dissent is that we believe modified reviewing system punitive prefer- S.Ct. at 1044. elasticity able to the uncertain of other stan- Supreme 10. The Court noted that Alabama trial dards. look to what it called the Hammond fac courts Gadsden, City v. tors after Hammond said, arriving 13. The full instruction "In (Ala. 1986). Haslip, So.2d 499 U.S. at punitive damages, you are to consider award of Hammond, 16, 111 at 1044. In the Ala S.Ct. following: bama Court said the trial court should (1) reprehensibility culpability as the of the of the conduct of the consider factors such conduct, desirability of discour defendant. (2) defendant’s conduct, aging impact parties, which will The amount of similar including impact have a deterrent effect on the defendant in the factors on innocent and other light parties. courts refined of defendant’s financial condition. third Id. The Alabama factors, (3) damage Haslip bear a rea- the seven listed in That the must these criteria to harm, relationship opinion injury, page Part sonable or dam- on IV.B.1.b.2, 1045 and in this under Hornsby, age actually plaintiff.” So.2d suffered in Green Oil v. (Ala. 1989), E.R. at 428-29. 223-224 and Central Alabama detailing included instructions that punitive reasoning its for the denial motions to damages are not to be used to compensate punitive award); alter Cole Control Data plaintiff, the instructions on compensato- Corp., Cir.1991) (re- ry damages made this clear. The instruc- manding so the district court could review adequate. tions in this case were under the standard articulated in Haslip). Following cases, the lead of these we think 2. Trial Court Review of the Amount of it best punitive to remand the award in this the Award case to the district analyze court to light it in stage As the scrutiny, second of of opinion this and to record its reasons for trial court should punitive review the award its conclusion. This remand assures that the and record its upholding reasons for or alter defendant will have stages the three of Due ing it. The trial court can look to the Ham scrutiny Process endorsed Supreme the mond factors14 or general other elements of Court in Haslip. reasonableness to determine puni whether a damage tive upheld. award should be The 3. Appellate Court Review of Procedure picture broader must be lost. The task and the Amount of the Award- comparison of the court is a between the As the punitive damages stage amount of third of actually scrutiny, as an appellate figure sessed court and a derived from should undertake facts of two distinct the First, inquiries. the case at it satisfy hand. To arrive at must figure, itself that the court the should look to defendant was awards in similar afforded the prior two stages scrutiny, i.e., cases and to experience. its own of proper If the instructions rejects award, district court recording the and a it upholding reasons for give plaintiff should option altering the the of a remit the award. If the district court titur or a punitive new trial on the damage give proper instructions, failed to a new trial issue.15 is in order on that issue. If the district court failed to record its reasons for upholding or Here, the district court failed to rec award, altering here, the as is the case the finding ord its reasons for punitive the award circuit court should remand the case so that proper. dealing Several courts puni the may district court analysis make its tives based on state law violations have re record its If conclusions. either of the two manded cases to the district court when prior stages lacking, is the circuit court had failed to state the rejecting reasons for remand; should reverse and it should not challenge to the Employ award. American undertake the substantive review of the Co., ers Ins. Seeding Services, v. Southern award. Inc., (11th Cir.1991) 931 F.2d (remanding case because district court appellate failed inquiry court’s second is a apply to the Hammond criteria and reflect substantive review of the amount of the (b) properly This instruction degree informed the reprehensibility of the defen- punishment conduct, goals punitive conduct, and deterrence dant’s duration of that damages, awareness, noncompulsory concealment, as well as the nature of defendant’s and the conduct; the award. Justice Haslip frequency O’Connor’s dissent in past existence and (c) of similar argued profitability that instructions such as these were un- to the defendant of the constitutionally vague. wrongful desirability Id. at conduct and the S.Ct. at of remov- suggested ing profit having 1056. She that the and of Hammond factors defendant also loss; (d) adequate guidance position” would serve sustain a defendant; (e) jury. as the "financial Id., (f) litigation; all the 499 U.S. at costs of S.Ct. at 1061. While this may imposition prudent, majority be of criminal sanctions on the defen- Court did not conduct, necessary. mitiga- dant for find it its these to be taken in tion; (g) the existence of other civil awards conduct, against factors, the defendant for the same 14. The Hammond as described mitigation. Court, Haslip, these also to be taken Supreme are: U.S. at 111 S.Ct. at 1045. (a)whether there relationship is a reasonable punitive damages between the comply with the 15. This is done Seventh likely harm to result from the defendant’s guarantee by jury. con- to a trial This Amendment’s occurred; actually duct as well as harm that fully under Part is discussed more IV.B.l.c. review, Court, appears, as the Appellate Supreme titur. The has award. necessary given blessing appellate never an pointed out its Court reducing affording an award without the award does “not exceed to ensure that plaintiff opportunity retry that issue. accomplish society’s that will an amount Industries, Browning-Ferris See 492 U.S. at and deterrence.” ... goals punishment 279 n. 109 S.Ct. at 2922 n. 25. makes certain that appellate This review damages are reasonable in circuits, however, Several have reduced the light of their their amount rational amount of awarded without has purpose punish what occurred giving plaintiff a choice of a new trial on repetition. its Id. S.Ct. to deter See, e.g., that issue. Rowlett v. Anheuser- omitted). (citations at 1045 (1st Busch, Inc., Cir.1987); (6th Frank, 80, 102-04 Shimman v. 625 F.2d states The Ninth Circuit’s standard Cir.1980); Milwaukee, City Bell v. 746 the amount “[u]nless (7th 1205, Cir.1984); Douglas 1279 v. excessive, unsupported by the evi grossly Services, Inc., 252, Metro Rental 827 F.2d dence, solely speculation, on based (7th Cir.1987); 257 v. Western State Guzman jury’s reviewing uphold the deter court must (8th Lake, 948, Bank Devils 540 F.2d 954 Davis, 927 F.2d at mination of the amount.” Cir.1976). Howéver, none of these cases con (citing Angeles Los Memorial Coliseum 1485 Amendment, sidered the Seventh and we do League, Comm’n v. Nat’l Football 791 F.2d not think it wise to follow this course (9th Cir.1986)). 1356, In 1360 action. suggested “manifestly Court that a standard, such as the one grossly excessive” already Two cases have held that a remitti circuit, by this, comport does not

used option tur without the of a new trial is a 10, Haslip, 499 U.S. at 17 n. Due Process. violation of the Seventh Amendment. 111 S.Ct. at 1045 n. 10. City Berwyn, McKinnon v. 750 F.2d 1383 (7th Cir.1984), the court reversed the district lead, Following this the Fourth Circuit punitive damages, court’s remittitur of with Corp., found in Mattison v. Dallas Carrier trial, option against police out of a new offi (4th 95, Cir.1991), Virgi 947 F.2d 105 said, cers a section 1983 case. The court reviewing standard nia’s “exeessiveness” for. the “Seventh Amendment reserves the deter punitive damages lacking. The substan damages, jury mination of trials within its “grossly tive content of the Ninth Circuit’s scope, jury.... proper corrective excessive” standard is now refashioned to give tois McKinnon the choice he was im give shape definite and texture and to denied, properly accepting between the re- any avoid conflict with the Due Process having damages.” mittitur and a new trial on Clause.16 A circuit court should determine Id. 750 F.2d at 1392. The Fourth Circuit punitive damage whether a award exceeds guar also held that the Seventh Amendment necessary accomplish goals the amount right antees a to a determination of the punishment deciding and deterrence in punitive damages. amount of In grossly whether it is excessive. Defender dust., Inc. v. Northwestern Mut. Ins. Life (4th Cir.1991) (en Co., 502, c. The Seventh Amendment’s Guarantee 938 F.2d banc). by Jury to Trial guaran

The Seventh Amendment’s To avoid conflict with the Seventh Amendment, by jury may require preferable tee to a trial a court course is to af- reviewing punitive damages party grossly an award of ford the awarded the excessive give plaintiff option punitive damages, of a new trial on is deter- court, punitive damages grossly by appellate option if it finds an award mined a trial or accepting puni- excessive and otherwise would order a remit- of either the remittitur of the (1992), grant Supreme 16. The recent of certiorari L.Ed.2d 532 does not alter our conclu- Corp. "grossly concerning Court in TXO Production Alliance Re sion our excessive” stan- Corp., likely sources 187 W.Va. 419 S.E.2d 870 dard. It is Court in TXOwill — -, granted, Haslip cert. U.S. 113 S.Ct. further standards. refine its damage tive or a new trial on that is appropriate, and record the reasons for its See, e.g., Ramsey issue. v. American Air conclusions. (7th Co., 1303, 1314 Cir.1985); Filter 772 F.2d Powell, (8th Hollins v. 773 F.2d Qualified C. Immunity Instruction Cir.1985), denied, cert. Defendants next take issue with the (1986); S.Ct. 90 L.Ed.2d 181 Mason v. district give court’s refusal to Texaco, Cir.1991), qualified immunity instruction. Police offi — denied, -, cert. U.S. 112 S.Ct. cers “are shielded liability from for civil dam (1992). 118 L.Ed.2d 547 ages insofar as their conduct does not violate clearly statutory established or constitutional Damages 2. Punitive Based on State rights of which a person reasonable Claims have Fitzgerald, known.” Harlow v. $150,000 The award of 800, 818, 2727, 2738, U.S. presents state prob law claims a different (1982). words, L.Ed.2d 396 police In other above, lem. As was said the Due Process officers are entitled qualified to assert a im analysis is the same whether the (and munity defense therefore to an instruc damages are based on federal or state law. tion) only they if affirmatively can show that The state sepa are treated “their justified conduct “was objectively rately here because of the additional ” reasonable belief that it was lawful.’ Bil issue of evidence of financial worth. In re Brown, brey 1462, 1467 viewing punitive damage a award based on Cir.1984) Toledo, (quoting Gomez v. law, state the district court-has an additional 635, 1920, (1980)). 100 S.Ct. 64 L.Ed.2d 572 duty; it must make sure that the is Although within the confínes it particularly set state law. not Brown clear, Industries, argument ing-Ferris 279, defendants’ seems to 492 U.S. at be that 109 qualified were entitled to a Recently, immunity S.Ct. at 2922. in Adams v. Mura kami, 105, 318, 54 instruction because “while the Cal.Rptr. Cal.3d 284 law was clear 813 ly (1991), that an may P.2d 1348 established officer Supreme the California detain Court individual without suspicion, held that an award of reasonable dam ages firmly was not properly principle cannot be established how the reviewed unless the applied question to the entire concerning record contains evidence air of a defendant’s port stops involving potential drug financial worth. The couri Murakami court held 17 ers.” that such presented evidence must be to the jury, and that presentation the burden of lies reject We this contention. It was well- Thus, plaintiff. with the defendants’ conten established at the time of this case that tion requires that Murakami the trier of fact Fourth Amendment seizures occur when a to consider evidence of defendants’ financial person leave, is not free to and that such considering worth in appropriateness of justified by seizures probable must be either punitive awards under California state law suspicion. cause or reasonable Defendants claims is accurate. why offer no reason we should draw a dis- Therefore, por- we remand the state stops law tinction occurring airports between in tion of the award to the occurring district and those places, other purposes court for the reconsidering dual why police reason officer would believe that light that award in Haslip. Murakami and rights citizens’ Fourth Amendment are some- remand, On the district court shall airports. consider how diminished in Even if we were evidence as to Officer Searle’s analyze financial inclined to as distinct the law worth, determine whether or airpori/courier stops, not a remittitur our conclusion would argue issue, Supreme 17. Defendants also that determinations in its latest word on the qualified immunity properly prov- about "Immunity ordinarily Court has indicated that However, jury. question ince of the there is no long should be the court before trial.’’ decided Judge that Pfaelzer was entitled to decide this - U.S.-, -, Bryant, Hunter v. S.Ct. question as a matter of law. See Thorsted v. 534, 536-37, (1991). 116 L.Ed.2d 589 571, (9th Cir.1988). fact, Kelly, 858 F.2d faith objective good ny, same. That law was well devel- a claim of be remain the leading oped by the time the events to this find that the facts of difficult indeed. We every place virtually par- case the analysis regarding suit took this case and our reason- — briefs had been decided ties discuss their preclude finding that suspicion able Searle years several earlier. objectively believed that his con- could have Therefore, we duct was constitutional. find Moreover, Court has refusing that the district court did not err in in the context of Fourth made clear give qualified immunity instruction. violations, inqui Amendment there can be no subjective ry police to a officer’s intent or as Rather, only “objective an officer’s Reputation Testimony

belief. D. is, he ‘good faith’ —that could'rea next Defendants contend that the sonably [his did conduct] have believed permitting Morgan district court erred in may Fourth be not violate the Amendment — put repu on witnesses who testified as his availability qualified relevant to the disagree. tation. review a district We We immunity monetary liability under defense evidentiary rulings for an abuse of court’s Connor, § U.S. 1983.” Graham v. discretion and will not reverse those deci 399 n. n. prejudice appealing sions absent some (1989) (emphasis original). L.Ed.2d 443 Desert, party. College Roberts v. Thus, our conclusion that Officer Searle act (9th Cir.1988). unconstitutionally ed as a matter of law is the inquiry immunity. qualified end of our on objected in The defendants the dis See, e.g., Kennedy Angeles v. Los Police trict court to the admission of evidence as to (9th Cir.1989) (“Our Dept., 901 F.2d reputation character and preceding discussion about obvious lack ground impermissible it was under Fed. dispositive quali probable cause is prior R.Evid. Rule 403 as evidence of conduct immunity question.”); Ridge fied Curnow v. indicating ar habit or custom. Defendants (9th Cir.1991) Police, crest 952 F.2d gued further that evidence would lead the (where police officer had used excessive force jury Morgan to believe that would not have Amendment,' in violation of the Fourth against day.18 aggressively acted Searle that established, was well officer is relevant law Morgan’s requested counsel the introduction qualified immunity); Hop not to entitled cf. purposes for of this evidence of establish (9th Andaya, 958 F.2d 885 n. 3 kins v. Morgan’s reputation ing that because was so Cir.1992) (“In Fourth Amendment unreason him, great important to he suffered a deal of cases, cases, unlike in other able force distress as a result of the unlawful emotional immunity qualified inquiry is the same as the permitted arrest. The district court the tes merits.”). inquiry made on the timony, preceding following it with the cau argue Defendants do not that Searle had tionary instruction: objective “good an faith” belief that his ac- testimony you going Nor could The which are to tions were constitutional. such finding comport with the facts of this case. hear is not offered to show that Mr. Mor- Agent gan any particular act in particular note in the fact that did or did not We Morgan way that at the time on the date and at the time of the Woessner testified officers, question away from the incident in here. It is offered on turned and walked damages suspicion damages, issue of that he they did not have reasonable claim, detaining claiming he so justify Morgan for a brief has been does —that say again you. investigatory stop. light of that testimo- let me brief, (9th Cir.) ("[A] preserve party opening refer to fails to 18. In their defendants However, appeal only by failing de- evidentiary violations of Rules 404 and 405. issue for challenge testimony omitted], failed to this on fendants objection, specific but [citations make a other than Rule 403 before the district basis objection by making wrong specific [cita also Therefore, only challenge on the basis court. denied, omitted]”), tions cert. appeal. preserved See of that rule has been for (1990). S.Ct. 112 L.Ed.2d 326 Gomez-Norena, F.2d United States v. It is not offered to show or to convince grant refused to trial on new the basis of you Morgan that Mr. did or not do did alleged this misconduct. We review a dis- things certain kinds of on the date and at trict court’s grant refusal to a new trial for alleged the time herein instead but offered an abuse of Harum, discretion. Robins v. issue of the Mor- that Mr. (9th Cir.1985). gan claiming. is Defendants offer legal no support question We consider the argument for their the sentiments re such evidence should have been admitted to jurors vealed constitute a basis for fairly be a jury may close one. The well reversing the district court’s denial of the have been more inclined to believe motion for a new trial. Nor has our research rather than Searle once heard from Therefore, any. revealed we affirm the dis Morgan’s integrity others about good trict court. reputation. However, cases, in civil even the juror’s The improper observations about sending admission of evidence is not messages City grounds speculation granting Hall and a new trial unless it as amount of prejudicial attorney’s constitutes error. As fees discussed sim above, ply do not jury constitute the had sort of plenty of evidence from “extraneous prejudicial which to conclude information” that falls that Searle rather within the than 606(b). scope of aggressor. was the Fed.R.Evid. Rule important, Most As we however, before, have observed probable type “[t]he effect of the district after- acquired cautionary information jury potentially court’s instruction and its taints a jury verdict should be expressly forbidding carefully distinguished statement plaintiffs general from the knowledge, implying opinions, counsel from that such evidence feel ings and every juror went bias that to habit or custom. We believe that carries into room.” precautionary Burlington those Hard v. steps significant blunted North Co., ern R.R. ly impact Therefore, testimony. Cir. 1989). complained we conclude that the observations district court did not here are type subjective abuse thoughts its discretion in admitting this evi beliefs which beyond scope inquiry dence. in a motion for a grounds new trial on the Irregularities’’ E. “Juror juror misconduct. Defendants’ argument final ap on A party grounds has to seek an evi peal they that is are entitled to a new trial dentiary hearing to determine whether a new juror because of the following “misconduct”: necessary trial is because of preju extrinsic 1) they excused, after were some of the “only dicial information when these materials jurors Angeles told Los reporters Times that require sufficient on their face to setting they had “wanted to message City send a to Burlington Northern, aside the verdict.” Id. police Hall” that uncontrollably; cannot act at 1461. example, Burlington For in North 2) jurors and three of the revealed in inter ern, juror one told the others that he had question views that the of whether the dam in place worked the plaintiff, same as the ages cover Morgan’s should attorney’s fees injured job when he himself on the he’d deliberations, during raised ju and one leave, paid received speculated that defen ror speculated attorney’s that his might fees dant company railroad probably had already $90,000. be around Defendants argue that compensated plaintiff injuries, for his injection “the of such prejudicial extraneous brought to the regarding plain deliberations information, and the use of these sorts of injuries independent tiffs his knowledge x- of influence, to upon juror bear deliberations is ray interpretation. Id. at Although improper arguably excep falls within the allegations juror of impropriety made prohibition tion contained Fed. Burlington Northern were far more direct 606(b).” R.Evid. Rule and damaging here, than those advanced conducting evidentiary

Without Burlington Northern court found no violation hearing question, 606(b) the district court of Rule or other impropriety sufficient NELSON, Judge, grant dissenting. court’s refusal to a trial D.W. Circuit

to reverse Polley, Carson v. trial. See also new portions respectfully part I from dissent Cir.1982) (juror’s spec 579-82 I majority opinion. agree with IV.B case, plaintiffs to the weakness ulations as that, my colleagues opinion in our first in this plaintiff relationship between and his at case, erroneously granted we a remittitur on torney plaintiff paid the amount of fees award, punitive damages the federal reduc subjective thoughts emo considered “the $300,000 $100,000. ing it from I also may juror’s tions that have influenced a de agree that the state grounds therefore not the liberations” and must be remanded under Adams v. Muraka juror trial on the basis of a motion for a new mi, Cal.Rptr. 54 Cal.3d misconduct.) light past jurispru In of our (1991). part company P.2d 1348 with the area, difficulty in this we have little dence however, majority, interpretation over its affirming grant court’s the district refusal Court’s decision Mu Pacific evidentiary hearing hold an on a new trial or Haslip, tual Ins. Co. v. Life juror impropriety. question . (1991) S.Ct. L.Ed.2d V. City separate Searle and the make two arguments respect to the size of the CONCLUSION First, punitive damages award in this case. respect affirm the district court with We they question procedure whether California’s JNOV, regarding grant its decisions reviewing comports such awards with due question of Officer Searle’s entitlement to Second, process.1 puni- claim that the instruction, qualified immunity the admis- generally tive award is “excessive.” evidence, reputational sion of and the issue of arguments I address each of these in turn. juror “improprieties.” respect With punitive damages, federal we remand the 1. The Due Process Claim analyze

issue to the district court to principles award under the set out in this Interpreting Haslip a. Finally, opinion. respect to the state awards, damage law we remand to In the Court considered whether a may the district court so that it hear evi- $840,000 punitive damages award of in an regarding dence Officer’s Searle’s financial process. insurance fraud case violated due evidence, considering condition. After not, finding favorably did the Court determine, the district court is instructed to considered proce- Alabama’s common law following reasoning opinion, of this regarding imposition dures and review of approve grant whether to the award or punitive damages. system Alabama’s option remittitur with the of a new trial and (1) stage, three-tiered: at the trial there are to record its reasons for its conclusion. regarding pur- detailed instructions (2) AFFIRMED in Part pose punitive damages; and REVERSED any after and REMANDED in Part. punitive damages, award the trial court brief, argued” 1. It is not at all clear opening that this court should even and in the Officers for process Commission, consider a due claim. In their initial Justice v. Civil Service 979 F.2d court, Haslip, brief to this the defendants cited (9th Cir.1992), we need not reach the due appeared merely support but to use that case process Traynor, claim. See also United States v. argument regarding appropriate their the stan- (9th Cir.1993) (holding 990 F.2d 1153 that an punitive dard are excessive. review for claims awards .that appellant right waives his to raise a claim when They never used the words "due opening only he does not do so in the brief but in process” nor did cite to Court or brief); reply Belanger v. Madera Unified prior Haslip lower federal court cases which District, (9th School 250 n. 1 process arguments respect concerned due Cir.1992) (refusing to consider issues not listed punitive damages. Only reply in their brief presented in "statement of issues for review” or they squarely process argu- did raise the due appellant’s opening brief which are raised for ment. brief). reply the first time Thus, policy under this court’s of not consider- ing specifically distinctly issues "not raised case, not (application single scrutinize the award of the as a will maker in a more factors) Second, permanent body- general- so-called Hammond consider de- remittitur; motions for new trial or ity may fendants’ instructions contribute to a (3) finally, appellate court conducts an predictability lack of ... certain These independent using its review own common system features of the for assessing law standards. Id. at S.Ct. punitive damages discourage uniform re- at 1046. sults, nonuniformity equated but cannot be infirmity. with constitutional finding proce- the Alabama review standards, however, process dure met due Haslip, 499 U.S. at 111 S.Ct. at 1055 the Court did not hold that the States must J., (Kennedy, concurring). minimum, adopt, at a proce- Alabama Thus, my reading under of Haslip, a due dure in order to survive constitutional re- process analysis punitive majority beyond view. The reaches procedure review consists of two fundamen- opinion Court’s to draw such a conclusion (1) inquiries: tal safeguards what are in fact, when, in Haslip court went out its place level, at the trial court when fact- way to taking ap- avoid such a formulaic finder makes the decision of whether or not proach: (2) impose punitive damages?; and what not, cannot, We need and indeed we draw post-verdict there, procedures review are bright a mathematical line between the levels, the trial court appellate and/or constitutionally acceptable and the consti- meaningful they? interpreta- how are This tutionally unacceptable that would ev- fit tion expressed is consistent with that however, ery say, gen- case. We can most circuit courts which have considered the eral concerns of reasonableness and ade- decision. In Eichenseer v. Reserve Ins. Life quate guidance from the court when the (5th Co., Cir.1991), 934 F.2d 1377 the Fifth jury properly case is tried to a enter into expressly rejected Circuit the view that Has- the constitutional calculus. lip expansive appellate is “a vehicle for re- Haslip, 499 U.S. at S.Ct. at 1043 punitive damages view of awards.” 934 F.2d added). Indeed, (emphasis Scalia, Justice Instead, interpreted at 1382. that court separately, majori- who concurred faulted the Haslip narrowly, requiring as ty opinion in Haslip precisely because it did (1) practical two considerations: whether bright approach: not take a line “... the circumstances of the case indicate that Court chooses to decide that the (2) reasonable, the award is whether present discretion case was not un- procedure assessing used and re- due_ jury-like provides This verdict no viewing imposes sufficiently the award guidance as to procedures other meaningful definite and constraint on the sufficiently ...” ‘reasonable’ discretion of the This factfinder.... is a (Scalia, J., U.S. at 111 S.Ct. at 1046-47 analysis. fact intensive concurring). Id. 934 F.2d at 1381-82. See also Glasscock rule, then, Rather than a bright line Co., Armstrong Cork 946 F.2d 1085 adopted approach Court a flexible which em- — Cir.1991), denied, -, cert. U.S. phasized the overall reasonableness of a chal- (1992) (affirming S.Ct. 118 L.Ed.2d 435 nature, lenged procedure. By review its award). a million $6 approach such an is fact intensive and case such, specific. As it is consistent with the Similarly, Eighth rejected Circuit inherently variable nature of dam- argument Haslip defendant’s identified ages. In concurring opinion Haslip, his in setting process “the Alabama ... as a mini- Kennedy punitive damages Justice noted that acceptable process in mum standard for due case-by-case awards bound to differ on a awarding punitive damages.” the Latham of basis. Breeders, Seed Am. Plant 978 v. Nickerson Cir.1992). (8th inconsistency jury

Some of results can be F.2d See also Jordan v. First, Louis, Inc., expected Clayton for at least two Brokerage reasons. St. Co. of jury (8th Cir.1992); empaneled is to act Peoples as a decision- F.2d Bank and Inc., your Publishing, you finding the conduct on base Trust v. Intern. which Globe Cir.1992).2 (8th The liability. of F.2d 1065 Second interpreted have Eleventh Circuits also Has- which is ‘Malice’means conduct intended generalized, standing for a more flexi lip as injury by the defendant to cause to the analysis punitive of process ble due awards plaintiff despicable or conduct which is car- focuses on reasonableness. which overall by ried on defendant a willful and punitive the Second reduced a While Circuit disregard rights safety conscious or Scott, damages in award Vasbinder v. person of A others. acts with conscious (2nd Cir.1992), F.2d 118 it nonetheless did so disregard rights safety of the of others interpretation Haslip a of under broad as probable danger- when he is aware of the requiring that such awards be “reasonable consequences ous of will- his conduct and Taking and rational.” 976 F.2d at 121. fully deliberately fails to avoid those similarly approach Haslip, broad consequences.... punitive damages Tenth Circuit reduced a added). Jury (emphasis Instruction re-With award from million to million in a $25 $12.5 spect punitive damages, to the of amount Texaco, products liability case. Mason v. district court instructed as follows: (10th Inc., Cir.1991), 948 F.2d 1546 cert. de provides The law no fixed standards as —nied, -, U.S. punitive damages, to the amount of such (1992).3 L.Ed.2d 547 jury’s but leaves the amount to sound discretion, passion exercised mthout or Applying Haslip b. to this case prejudice. light In of I would review the arriving In punitive award of process respect defendants’ due claim with damages, you following: are to consider the $450,000punitive damages under (1) reprehensibility The the conduct First, two-stage inquiry. I consider the defendant. safeguards place what were in at the trial (2) punitive damages The amount of which court level to insure that the award was will have a deterrent effect defen- light in reasonable of the defendants’ actions light dant in the of defendant’s financial punishment goals and deterrence condition. Second, punitive damages. I would consider (3) punitive damages That the must bear post-verdict procedures what review there relationship injury, reasonable were to further assess the reasonableness of harm, damage actually or suffered the award. plaintiff. inquiry touchstone of the first level added). Jury (emphasis Instruction jury. the trial court’s instruction of the case, gave the district court concedes, standard As the majority opinion these California imposition instruction on the clearly satisfy instructions the concerns of punitive damages: Haslip court: may your

You discretion award such enlightened [The Alabama instructions] if, if, damages, you but find punitive clear damages’ as to nature convincing evidence that said defen- and purpose, identified the as guilty oppression dant was punishment wrong malice in doing for civil note, however, Eighth (4th Cir.1991). 2. that the Circuit recent 947 F.2d 95 In Johnson and ly major opinion Mattison, withdrew a on the constitution Virgi- the Fourth Circuit invalidated ality of a award in order to processes, nia’s and South Carolina’s review re- Co., hear the case en banc. Robertson Oil Inc. v. spectively, correspond because did not Co., (8th Phillips Petroleum 979 F.2d 1314 Cir. majority's opin- the Alabama model. As with the 1993). today, impo- ion such an outcome amounts to the "upon Virginia of] sition [of the state a federal Only Haslip the Fourth Circuit has read Johnson, damages].” common law [of require parrot system the States to Alabama's J., (Luttig, concurring 974 F.2d at reviewing punitive damages See awards. John part, dissenting part). Hugo's Skateway, son v. 974 F.2d 1408 Cir. 1992) (en banc); Corp., Mattison v. Dallas Carrier

1265 involved, explained kind and their light im- in purpose punish of their what has position compulsory.... not long was As repetition.” occurred and to deter its Has punitive as the discretion award [to dam- lip, 17, 499 U.S. at 111 S.Ct. at 1045. In the ages] is exercised within reasonable con- absence statutory procedures, of review we straints, process due is satisfied. again turn to the California common law procedure review reviewing for punitive dam 16, Haslip, 499 U.S. at 111 S.Ct. at 1044. ages awards.5 law, Under state common the First, the California instructions limit the district court required was to sit as an inde jury’s punitive discretion damages to award pendent of trier fact when reviewing the in at respects.4 three least The court also punitive award of damages. Hilgedick, 12 that, jury the in instructed order to award Cal.App.4th (cita Cal.Rptr.2d 8 76 amount, it had to omitted). tions In considering mo first defense that the “op- find defendant with acted tions for a judgment new trial or a pression notwith or malice” and defined these terms standing verdict, the the trial jury. for the court should Finally, the court the warned (1) consider following the factors: the rela that it could not act of prejudice out and egregiousness tive passion. defendant’s con duct; (2) the relationship puni between the The California instructions case also tive (3) award and the plaintiffs injury; and meet Haslip requirement the discussing of size of the the reasonably the purpose punitive nature and of damages. relates to the defendant’s financial condition. spell-out The instructions the purposes of Wollersheim, 383-387, 10 Cal.App.4th at 6 punishment of the defendant and future de (citations omitted). Cal.Rptr.2d 532 While And, importantly, terrence. they explicitly not word-for-word like Alabama’s so-called link purposes degree repre these of factors, Hammond the California par factors hensibility of the defendant’s conduct allel the expressed concerns in the Alabama defendant’s financial condition. these re In common procedure, law review so I and spects, the California punitive instructions on uphold them.6 damages stringent are more than Alabama’s. Hilgedick Accord Koehring v. Corp., Finance my In colleagues contrast to majori- in the 12 Cal.App.4th (1992); Cal.Rptr.2d 8 ty, I processes the conclude twin of v. Church Scientology Wollersheim Cal instructing factfinder about the nature ifornia, Cal.App.4th Cal.App.4th purpose punitive damages (1992). Cal.Rptr.2d independent post-verdict review trial inquire would next post-verdict into the requirements meet Haslip. procedures reviewing punitive damages. procedures These “meaningful and ade- Under we assess this process quate” “standardless,” review than rather and so certain “make[ ] that the comport general reasonableness re- are reasonable in their amount quirements rational Haslip. noting It is again, worth that the trial court instructed system 6.Once I note that California’s findings to make its under "clear appears to be more strict than the trial court standard, convincing evidence” evidentiary procedure approved Haslip review in terms of stringent pre- standard is more than Alabama’s degree independence attributed trial ponderance of the evidence standard. bar, court’s review of the award. In the case at furthermore, especially the trial court was well-

5. The California Court has not ad task, suited to such as it had heard first-hand directly dressed the issue of whether California's So, in two trials of the same evidence case. procedures comport common law review required while the district court to and Murakami, Haslip. expressly the court de rejecting did not state its reasons for defen- issue, clined to reach this 54 Cal.3d at judgment dants' for a new trial and motions Cal.Rptr. 813 P.2d but court re record, notwithstanding verdict on the it was cently granted petitions review in two cases required to consider these defense motions inde- squarely Gourley which raise the issue. See Co., pendently. State Farm Mutual Automobile Insur. 9, 1992); MGW, Daily (July DAR Journal Development Inc. v. Corp., Fredricks 85, 10 Cal. (1992). Rptr.2d 832 P.2d 586 1266 Id. (citing Angeles Claim 927

2. Excessiveness F.2d 1485 Los Memorial Coliseum Comm’n v. Nat’l Foot general claiming that In addition to (9th League, ball 1360 Cir. damages awarding punitive violat- process of 1986)). Under this deferential standard of City argue and the process, ed Searle due review, uphold punitive damages would and that the that the award is “excessive” award Although on the federal claims. there by failing to reduce it. court erred district conflicting testimony was about the alterca for of discretion a district We review abuse officers, tion between grant deny or a motion for court’s decision jury clearly persuaded by Morgan’s tes a new trial or remittitur because of the size timony and that of the other witnesses for punitive damages Browning- a award. Thus, plaintiff. supports Industries, the evidence Ferris U.S. at finding that state actors violated at 2922. rights civil under Section 1983 and that the argue The defendants that the Court effec defendants’ conduct “involved a reckless or tively holding overruled much of its in callous indifference constitutional Browning-Ferris Haslip. Industries with rights warranting punitive of others” dam Despite punitive damages, its concern with ages. Id. 927 F.2d at 1485. Haslip does not affect the abuse of discretion by Browning- standard of review mandated “grossly excessive” standard involves Industries; Ferris the two cases concern inquiry relationship into the between the fundamentally questions. different Whereas wrong goals punish- committed and Browning-Ferris deals with the Industries punitive damages ment and deterrence which appellate standards of review of common law initially serve. The found that Searle reviewing punitive damage procedures for approached and further harassed awards, Haslip overarching concerns the solely because his African-American race. validity very proce constitutional of these By awarding punitive damages, substantial Haslip expressly impliedly dures. did not or jury publicly this conduct. condemned any holding Browning-Ferris overrule in Ind Further, generally this award serves to deter ustries.7 police might single out citizens officers who short, Haslip, even after we continue to context, on the basis of their race. In this review the excessiveness claim defendants’ $300,000 punitive we find that an award of under an abuse discretion standard.8 damages “grossly Prior is not excessive.” damages today’s majority, uphold punitive This court must decision this circuit damages “[u]nless award amount of never had reversed a excessive, grossly unsupported by police the evi- in a case on the misconduct dence, solely speculation....” ground large.9 or based on too that was Further, Haslip process 7.Some courts have read footnote as the due claim. there is not condemning, infirmity, suggest every for constitutional state evidence to that each and "shock procedures awarding common law and re- the conscience” or common law stan- similar viewing punitive damages pass which do not mirror dard would fail to constitutional muster. Mattison, those in Alabama. See 947 F.2d at my reading Haslip, procedure Under each 106. In note the Court does note differences case-by-case would have to be assessed on a approves between the Alabama method which it explore the content of the common law basis and other methods: standard. schemes, respective In those an amount that, by the fact 8. This conclusion is buttressed only if awarded would be set aside or modified subsequent Haslip, this court has relied on the excessive,’ 'manifestly grossly it was Browning-Fer- standard of review articulated in be considered excessive when 'it evinces Davis; City ris Industries. See v. Los Larez passion, prejudice part bias (9th Cir.1991). Angeles, F.2d the conscience.’ so as to shock n. 499 U.S. at 17 n. 111 S.Ct. at cases, police (citations omitted). In two recent misconduct upheld awards I do not believe that the Court against Gates, challenges. Browning-Ferris excessiveness See Corder intended to overrule Indus- Cir.1991); Larez, noted, tries in a footnote. The Court itself case, that the defendants' had not made F.2d at 639. the defen- Because I believe that neither claims process

dant’s due nor excessiveness merit, dam- have would affirm ages the federal claims. I re- award as to

spectfully dissent. America,

UNITED STATES of Plaintiff-Appellee, GAUDIN, Michael E. Defendant- Appellant. No. 90-30334. Appeals, United States Court of Ninth Circuit. Argued and Submitted Oct. 1991. Submission Withdrawn Oct. 1991. 1992., Resubmitted June Opinion Filed Feb. 1993. Opinion Withdrawn June 1993. Decided June

Case Details

Case Name: Joe Morgan v. Bill Woessner, and Clay Searle Los Angeles City, (Two Cases)

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 10, 1993

Citation: 997 F.2d 1244

Docket Number: 91-55728, 91-55863

Court Abbreviation: 9th Cir.