*1
1207
a new
the Robinson-Patman dam-
grant
E.g.,
a new trial.
trial on
discretion to
ages.
Corp., 658
v. Lockheed
Schneider
Aircraft
(D.C.Cir.1981),
denied,
F.2d
cert.
Finally, the
err
trial court did not
994, 102
1622,
Washington sought specific jury Mills DeLong only in
charge that could recover injury price from the amount its own VINEYARD, Plaintiff-Appellee, Johnny discrimination, and not the amount sug- gain. rejected this BCS’s The court GEORGIA, MURRAY, Bill COUNTY OF general gestion theory on the ad- Hansird, as former Sheriff of point. might He monition covered the Chastain, County, Robert Bish Monte recalled, too, DeLong’s lawyers had Defendants-Appellants. op, during closing argument jury advised the No. 92-8601. DeLong’s injury, gain, BCS’s appropriate was the measure Robinson- Appeals, United States Court Nonetheless, cannot damages. Patman we Eleventh Circuit. conclude, say that it was error to once May precise sum jury returned a verdict BCS, paybacks impermissible figure rea- chosen grant Accordingly, we affirm the
sons. *2 Davis, Berry Askew Anderson Brinson
J. Rome, GA, Davis, Seigler, & Richardson defendants-appellants. Dean, Waycaster Corn Jeffrey Jerome Morris, Gregory Harold Kinna- Murry & Thames, Dal- mon, & McDonald Kinnamon GA, ton, plaintiff-appellee. drinking DUBINA, living. He had been Debra was Circuit COX Before GODBOLD, beer and was intoxicated. Debra refused Senior Circuit Judges, and glass to let him in the house so broke Judge. pane in the door with his fist. The two CURIAM: PER request, began, fight. At Debra's *3 in the house with woman who lived her Plaintiff, brought this Johnny Vineyard, Department. By called the Sheriff’s against Murray 1983 action 42 U.S.C. § arrived, Bishop Deputies time and Chastain Bishop Georgia, Monte County, Robert and Johnny and had calmed down and Debra Chastain, Mur- deputies of the two former porch waiting for them. were on the and County Department, Wil- ray Sheriffs Johnny him officers and drove to arrested Hansird), (Sheriff in his indi- liam Hansird hospital to care for the cuts on his hand. capacity his official capacity and vidual rele- Murray County during the sheriff hospital, they When arrived at the alleges the de- Vineyard vant events. Johnny deputies one of Vine- handcuffed rights violated his under fendants emergency in an yard’s arms a bed to Fifth, Fourth, Amend- and Fourteenth emergency in the room he room. While ments. pill, he took a the last of a was nervous so prescribed bottle that his doctor had to Bishop and Chas- Vineyard claims depression. The offi- anxiety control and tain, domes- arresting following him after empty cers discovered the bottle sus- him and dispute, repeatedly threatened tic pected Vineyard had overdosed on the he in and chest while was the face beat him personnel drug. Along the medical Vineyard hospital to a bed. handcuffed attempted forcibly hospital, they to Department had alleges that the Sheriffs by trying empty Vineyard’s stomach supervision, training policies of inadequate that would make him drink a substance deputies, caused discipline of its which make him vomit. by Bishop rights of his the violation Vineyard adamantly refused to drink the Chastain. attempted explain substance. He After the jury. tried to a The case was only pills one of the he had taken evidence, the court directed close of prescribed insisted that medication was in his in favor of Sheriff Hansird told those by his doctor. The officers who capacity, denied motions for but individual leave present the room to and that were in in official verdicts for Hansird his directed back, co- they Vineyard would when came capacity, and Chastain. operate. a verdict favor returned alone with offi- Vineyard When was against each of the plaintiff and defendants cers, handcuffed to the he remained while remaining in the case. The district court in the bed, they repeatedly him head beat judg- for defendants’ motions denied the heart sur- A scar from earlier and chest. verdict, for re- notwithstanding the ment pacemaker were visible on his gery and a judgments and de- and to amend mittitur most of the Bishop delivered bare chest. trial. Murray County’s motion for new nied Bishop blows; nothing stop did Chastain appeal. We affirm. The defendants Vineyard times also several struck pain, Vineyard, afraid and AND I. FACTS1 PROCEDURAL ribs. help, no one re- loudly out cried HISTORY sponded. giving to this At time events rise returned, hospital staff occurred, When the Johnny Vineyard and his case through a tube Debra, nurse or used wife, separated involved technician lavage irrigate his Very early Vineyard’s nose proceedings. in divorce pill no doctor discovered Johnny where stomach. The morning, went to house note, however, Vineyard. We favorable to Vineyard’s review of the district defendants seek occurred, particular- what version refusal to direct a verdict in their favor. court's therefore, hotly disputed We, ly at trial. light hospital, was most at the relate the facts in the damages $20,000 punitive Bishop and Vineyard’s stomach fragments when Chastain. emptied. Vineyard to later took
The officers
APPEAL
consider-
ISSUES ON
to suffer
II.
continued
jail,
where
to the
go back
He wanted
pain.
able
issues
raise a number
The defendants
knife to cut
pocket
hospital
he used his
so
merit discussion.
Only two
appeal.2
on
attempt. His
fake
suicide
his
wrist
Hansird,
capacity,
in his official
Sheriff
him to
returned
worked; the officers
ploy
County3
error
assert
re-
examination
A medical
hospital.
their motion
court’s denial
district
jaw was broken.
vealed that
evi-
the lack of
based
directed verdict
trial,
and a half
three
time of
At the
inadequate poli-
custom of
prove
dence
*4
incident,
the
morning of
the
years after
the abu-
procedures that caused
cies
suffer substantial
to
Vineyard continued
Vineyard.
treatment of
sive
by the
caused
injury
primary
pain
the
from
contend
of the defendants
All
undergone
has
jaw. He
beating, a broken
denying
motion
in
their
court
district
erred
and treatment
operations
surgical
two
the
mistrial,
was based
for a
which
injury.
with
pain
the
associated
ar-
impact of certain
prejudicial
potentially
arrest,
Vineyard’s
Hansird
time of
At the
De-
Vineyard’s counsel.
made
guments
trial,
County.
Murray
At
Sheriff
mistri-
of a
sought
declaration
the
fendants
jury that Hansird
the
instructed
the court
made com-
Vineyard’s counsel
al because
policy for Mur-
authority to make
had the
to the
references
parisons and
enforcement.
in
of law
County
the area
ray
case of
incident, widely publicized
a
King
Bishop, Monte
Hansird, Robert
Sheriff
California,
in
brutality
police
alleged
David
James
and Professor
Chastain
message to the
a
jury
send
to
asked
testi-
operations,
White,
expert
police
an
Murray
officials.
Murray
policies of
regarding the
fied
Department.
County Sheriff’s
REVIEW
OF
III. STANDARDS
evidence,
court
close of
At the
di
of a
reviewing the denial
When
Han-
of Sheriff
verdict
favor
directed a
verdict, we consider “whether
denied rected
capacity, but
in his individual
sird
light most favor
evidence,
in the
viewed
in his
verdict
for a directed
his motion
non-moving party, is such
to the
ver-
able
jury returned a
capacity.
official
at a con
not arrive
men
all
could
against
reasonable
plaintiff and
dict in favor
Chouinard,
v.
trary verdict.”
Chouinard
Pursuant
to
defendants.
remaining
Merely
430,
(5th Cir.1978).4
433
568 F.2d
judgment
verdict,
entered
the court
jury’s
to
not be sufficient
will
awarding
of evidence
defendants,
scintilla
jointly,
against
verdict;
must be
there
a directed
along avoid
damages,
$115,000
compensatory
v.
Cunningham
evidence.
damages from substantial
$60,000
punitive
public
discuss,
against a
liability purposes, a suit
"For
we
issues
2. In
to
two
addition
capacity
considered
erred
the district court
in his official
contend
official
defendants
depo
(1) allowing
entity
rep-
following respects:
government
against
in the
the local
suit
947,
to
testimony
Jones Allison
of Johnnie
County,
sition
877 F.2d
Fulton
Owens v.
resents.”
trial;
(2) failing
grant
trial
a new
used
because of
grant
Cir.1989).
(11th
The district court
n. 5
951
verdict; (3) failing to
an
excessive
explained
in its instructions
Chas-
in favor Monte
a directed
deci-
county
whose acts
is a
official
Sheriff
force
he used excessive
claims that
tain on the
County.
policy
can establish
sions
stop Bish
he should
intervened
and that
Transcript,
558-60.]
R. 14 at
[Trial
(4) refusing
beating Vineyard;
bifur
op from
and the
officers
the trial of
individual
cate
binding precedent all
adopted
court
4. This
(5)
County;
the Sheriff and
trial of
handed
Fifth
of the former
Circuit
decisions
jury according to the
refusing
charge
1,
City
v.
1981. Bonner
before October
down
regarding
suggested instructions
defendants’
1206,
Cir.1981)
Prichard,
(11th
1209
661 F.2d
force.
Each
use
reasonableness
(en banc).
is meritless.
these contentions
1211
Amend-
of the Fourteenth
394,
(5th
Process Clause
States,
395
Cir.
F.2d
553
United
ment,
detainee
“protects
pretrial
which
1977).
of excessive force
the use
from
denial
the district court’s
review
We
Graham, 490
punishment.”
amounts
only.
of discretion
abuse
a mistrial for
10,
at 1871 n. 10
at 395 n.
109 S.Ct.
U.S.
580,
Atlanta,
647 F.2d
City
v.
Jonas
520,
441 U.S.
535-
(citing
Wolfish,
Bell v.
1981).
(5th
BUnit
June
Cir.
1871-74,
60 L.Ed.2d
99 S.Ct.
(1979)).
IV. DISCUSSION
that Vine-
The Defendants do
contest
County Liability
true,
A.
beating, if
description of the
yard’s
Vineyard’s
a violation
constitute
would
any ex
analysis of
begin our
We
either the
rights whether
under
considered
“identifying
spe
claim
cessive force
pretrial
protection Process
Due
Clause’s
allegedly infringed
right
cific constitutional
Fourth
punishment or
detainees
of force.”
challenged application
by the
unreason-
protection from
Amendment’s
Connor,
490 U.S.
Graham
argues
seizures.
Chastain
Defendant
able
(1989).
104 L.Ed.2d
S.Ct.
insufficiency of the
only the
vio
whether
constitutional
determine
participated
that Chastain
prove
the stan
by applying
has occurred
lation
*5
prevented
beating and
he should have
that
particular constitu
to that
applicable
dards
find
beating Vineyard,
we
Bishop from
394, 109
490
at
provision. Id.
U.S.
tional
Defendant
sufficient.
evidence
be
that
a
clear that
Only
at 1871.
when
is
S.Ct.
sufficiency of
the
Bishop does not contest
can
rights has occurred
specific
of
violation
jury’s verdict
the
supporting
the
municipal liability
question
1983
the
of §
Consequently,
need not
we
against him.
liability
To attribute
injury arise.
for the
Amendment, in
Fourth
whether
decide
the
1983,
plaintiff
the
under
municipality
to a
§
Process
to the Due
Clause
addition
municipality
the
that
must demonstrate
Amendment,
a
of con-
is
source
Fourteenth
moving
was “the
policy that
had an official
pretrial
of a
detain-
protection
stitutional
Polk
violation.”
of the constitutional
force
of exces-
from the
right to be free
use
ee’s
Dodson,
102
454 U.S.
v.
force.
sive
(1981);
454,
Par
445,
supporting said, damages. He punitive award therefore, in de- court, did not err district for directed verdict the motion nying damages punitive are these The reason Han- County and Sheriff Murray favor of punitive dam- important is because so capacity. his official everybody sird in message back to ages send a message They a Murray County. send Closing Argument B. there, the sheriff that’s politicians to the there, deputies that are in office challenge the dis also Defendants You, to- by your verdict involved there. grant motion refusal to their court’s trict Johnny was beaten day, you if find that mistrial, they on which based for a message a deputies, you’ll send by the inap Vineyard’s counsel made claim return a low ver- you If closing back to them. during his ar propriate statements damages, punitive or no argu dict with low “the entire gument. We consider given you have them remarks, you’ll tell them the ob ment, the context kind of behavior approval for this your raised, and the curative instruction jection occasionally beat okay to and that it’s were whether the remarks to determine up this. fellow like gravely calm impair ‘such as court’s denial of in the district and tell of discretion large return you If of those mistrial. get some motion for a it’s time the sheriff defendants’ in effect so this procedures policies and deputies happen again, tell
won’t V. CONCLUSION you get into this kind think twice before excessive force on situation and use not demonstrated have The defendants politicians tell the there. fellow. You’ll rulings any the district court’s error 514.). defen- (R. point, At this 14 at challenged appeal. and, hearing objected outside dants AFFIRMED. They ex- requested a mistrial. jury, references plained that combination King requests incident
to the GODBOLD, Judge, Senior Circuit message to the. jury send a dissenting: pretrial rul- officials violated this case. The defen- I would reverse judge The denied district court. ings of the the kind of trial to which dants did not have jury as fol- and instructed the the motion Plaintiff counsel’s they were entitled. lows: improper arguments to the egregiously interrupt me gentlemen, let Ladies would, themselves, require rever- jury you point moment to out just a sal, to the unfair- other events added really is not purpose of a verdict of the trial. people. ness messages generally to out send verdict, if jury it is purpose of a in modern times have Few matters awarding damages, compensate citi- emotions of individual raw the rubbed to an award of plaintiff if he’s entitled institutions, zens, American and of may instances it damages, and in some King was beaten Rodney King events. punitive dam- appropriate to award '3, March Angeles police on by Los puni- appropriate if it is to award ages, incident, fortuitously videotape of the punish is done to damages, then that tive observer, released to by a citizen made defendants, that’s the a defendant 5,1992 and shown over public on March damages, appropri- if purpose of it’s real again on television for weeks. and over them. ate award Rose, Eric W. S. Lucas and Steven 515.). (R. conclude 14 at The defendants Evidence, Times, L.A. Jury All Saw cautionary instructions the court’s swept The matter Apr. at B7. inadequate harmful effect to cure the fire, country prairie arous- across our like argument that a mis- improper ing outrage from television cries remedy. only appropriate trial was the media, print commentators and radio aside a are reluctant to set levels, at all and from public officials argument made of an verdict because See, country. e.g., pulpits across the Seth during closing arguments. See *8 counsel Times, Verdict, N.Y. Mydans, The Police Allstate, F.2d at 318. The district 1992, (stating Pres. 30, at A1 that Apr. opportunity to observe and judge had the video). by the “sickened” Bush said was argument and to the tone of the control department began a na- Justice U.S. jury. The chal- impact its on the determine brutality police com- review of all tion-wide clearly lenged arguments were not viola- Mayor Bradley launched an inves- plaints. order,5 court pretrial and the tive of the Depart- Angeles Los Police tigation of the any instructions to avoid gave curative Christopher by Commis- ment headed might have result- prejudice that otherwise sion, that L.A. Police which recommended argument. find no abuse ed from the transcript pretrial among of the It is unclear from the pretrial discussions 5. The conference judge judge regarding ap- whether the considered parties other trials conference and the inappropri- inappropriateness of references to other instanc- pear contemplate specifically the force, Rodney alleged involving such as the mentioning es of excessive other cases ateness King parties incident. are not relevant to this case. these for millions of high emotion cern and retire. Id.1 Darryl Chief Gates Americans.2 21, January began case in this The trial similarity of the cases is obvious: 24, January 23 and 1992, on and continued custody, allegedly suspect in criminal 28th, 28. On January 27 and on then raging out drugs, allegedly drunk or under closing argu- breath of the first with arresting impossible for offi- control and threw plaintiffs jury, counsel ment to handle, the sus- plus evidence that cers to jury box. in the skunk seriously injured is beaten and pect If (Counsel plaintiff): for MR. DEAN against which he is through force excessive positive that good or anything there is counsel himself. Twice to defend unable King horrible out came phrase catch his statement the into worked on you beating most witnessed brutality.” “police police bru- television, issue stopped have The trial should court brought to the forefront tality was instantaneously, declared a proceedings country gave it a lot and across the news Instead, mistrial, sanctioned counsel. realize opportunity to people the court caught by surprise, the presumably brutality does occur. police instruction to a mild corrective gave defendants): (Counsel for DAVIS MR. happened in California has that what effect Honor, going to me, Your I’m Excuse case, nothing to do with this point. this object at on the evidence case was to be tried your objec- I’ll sustain THE COURT: enough. too not It was This case. tion. prob- the real And it not address did mild. nothing do— That has MR. DAVIS: be tried on the case was to Of course lem. happened Cali- What THE COURT: judge’s did But the comment evidence. men- fornia, though he didn’t even concern, which was the crucial address not California, where that’s tion it was upon counsel’s statement impact anything really doesn’t have happened, considering the jurors minds has to be This case with this case. to do should minimum the court At a evidence. case. So this upon the tried explored jurors wheth- carefully go ahead. the evidence they consider er could upon were free of the effect fair verdict p. 500. Counsel’s remarks reach a Rec. inadvertent- minds of what counsel They were not their not accidental. re- counsel mid-argument. said, to which of the matter in the heat of ly uttered ferred, concerns of the national They reply kind. They were not Moreover, the correc- it. naked, outrageous, had arisen from awas deliberate. This California was directed to instruction what was tive appeal unprofessional merely problem was But the matters. deep con- matter is now—a then—and ed.), (U.K. Less severe May at 55. light on Subsequent shed additional events widespread charges against cities rioting such feelings. occurred in public criminal State Francisco, York, Seattle, Atlanta, to trial on Las Angeles police San officers went New the Los instant case Stanley weeks after six David Tampa. March began. Edith Vegas, and issued its April Treadwell, Day, On Second Continues Violence offenses acquitting of all the defendants Now, Times, 2,May when this at A7. L.A. defendant, against on except one count written, con- been two officers have dissent is hung de- and a mistrial jury was which the charges. criminal victed federal wrongly rightly the verdict clared. Whether Amer- commentators across was denounced court, 5, points opinion n. out 2. The See, the Na- world. From ica and around *9 pre-trial about the the at there were discussions Times, 4,May at Newspapers, L.A. tion's mentioning cases of inappropriateness other of newspapers): The Whole (quoting A9 American not did alleged police The court misconduct. Riots, L.A. Reacts—to L.A. World Watches—and incident; Rodney King the mention of forbid Times, Report, (quoting May World at up. implica- specifically The come did not Angeles suf- newspapers). Los international of counsel by plaintiff the remarks dead, tion resulting rioting days in 58 of fered two 4,000 of ahead not forbidden arrested, excusable 12,000 because $1 billion of injured, disingenuous. Economist, by court order Together?, time Pulling damage. testimony by deposi- allowing in Rodney discretion in California. happened what Ms. Allison Allison. Jones tion of Johnnie had country and a inflamed King case had deposi- By her key witness. plaintiff’s was issue. a national become plaintiff’s length at to testified she tion moved for objected and counsel Defense mistreated and otherwise being beaten points out that This court mistrial. a oc- of what The evidence hospital. the objection. his ground a state did not notes, hotly there, was this court curred objection as the sustained But the court of sub- Allison is the source Ms. disputed. then be- uttered. Counsel soon as was in recital parts of the of stantial court termi- ground, the a gan to state by this court.4 out favor set plaintiff’s remark about dialogue with its the nated events, event, summarizing if ever a series any Briefly in matters California. deposi- the everyone happened knew the about here is what a case where there was begun had proceedings it. was After trial objection, this tion. ground of the that he the court notified plaintiff’s counsel counsel all. Plaintiff’s is not The above Ms. Allison deposition of offer would instruction. the corrective stop after did not unable to attend she was ground on quiver, arrow second from He drew the F.R.Civ.P. illness. See because case,” a tape this in no video “there was (b)(1). 802, 804(a)(4), De- 32(a)(3)(C),FRE again of reminding jurors way of backhand later, couple days a objected and fendant King, alleged brutalization tending to produced evidence inquiry, after then light, to brought which had been to to come not Ms. Allison was unable show memorialized, by videotape. prove never was able court. Plaintiff trial the confidence share I do not physically unable Ms. Allison motion, post-trial denying a court, in stated Indeed, submissions after several appear. that, bearing in mind colleagues, my days, extending over several to the court instructions, improper counsel’s the court’s only suc- court found a difference. really did not make remarks Allison was buttressing that Ms. ceeding a Band- cured with not be This case could Plaintiff’s to come. physically not unable aid. knew, talking Ms. Allison counsel inappropri- made another Later counsel excuse trying get a doctor’s about subject, this on a different argument ate to court. her, not want to come that she did politi- punishing respect time with illness be- unavailability because When awarding punitive county by cians plaintiff’s coun- ground, gan to abort as court’s argument damages. The of activ- engaged a belated whirlwind sel this opinion out response are set Alli- on Ms. subpoena ity trying to serve by itself Perhaps this statement court. home, detec- through private her son at But defense for mistrial. ground was not Allison, by coun- tive, of Ms. a relative prejudice pointed to the cumulative 32(a)(3)(D). counsel Fed.R.Civ.P. himself. See sel Rodney King statement created process departed ahead of But she had statement. politicians” “punish the to find her Defense counsel tried servers. could not. subpoena in this not be rewarded Plaintiff should $195,000, an totalling by judgments case situation, court rec- with this Faced recognized, in the trial court amount it had the issue before ognized that motions, was “at ruling pre-trial unavailability be- alleged changed from acceptable verdict.”3 of an outer limits procure testi- inability to cause of illness As the by subpoena. mony I witness necessary that address it is While it, “dili- question was phrased detail, on court I reverse full would matter in might as it trying get her gence its abused ground that court sole amount, to assume that but it is fair an attorneys reveal in the amount fees Plaintiff claims $130,000. not nominal. the amount was record reflects approximately without the parties resolved claim opinion. note 1 of this court’s 4. See necessity any It does not action court. *10 unavailability. p. Rec. 359. impact on orally CLARK; Futch; events that
The court discussed the Bill Herbert Austin inability subpoe- Hurst; tended to show to serve Louis Sliker and William that, Barrineau, held since Ms. Allison could Plaintiffs-Appellants, na and adversary subpoena reached not be present deposition her counsel had been CLARK, INC., & COATS adequate to cross exam- opportunity with Defendant-Appellee. ine, deposition would be allowed as No. 92-8024. finding was miss- testimony. But a critical recognized ing. The that dili- court Appeals, United States Court of issue, plaintiff an but it gence by the Eleventh Circuit. question. never addressed that May 1993. using Establishing predicate a de Denied; Rehearing Suggestion nicety. position objection over is not a mere Rehearing In Banc Declined 801(c) deposition is hear FRE Under Oct. — U.S. -,-- Salerno, say. U.S. v. -, 2503, 2506-07, 120 L.Ed.2d S.Ct. (1992). 32(a)(3) simply Fed.R.Civ.P. exception permitting admission
acts as an testimony deposition when witness
.of trial. See testify at Michael
unavailable to and Proce Graham, Federal Practice
H. (interim 1992);
dure § at 776 n. ed. al.,
11 James W. Moore et Moore’s Federal (2d
Practice 804.04[1], at ed. VIII-262 §
1993). Deposition testimony may also be hearsay exception FRE
offered as a under
804(b)(1), requires that too unavailabili
ty. unavailability under considering 32(c)(3)
Rule and under FRE 804 Moore, appropriate diligence.
must show
supra, 804.03[5], The court VII-255-58. § point.
did not address this It was error to proof
permit deposition use of the without
of, of, diligence. even consideration or properly tried
This case should be part plaintiffs
restraint on the counsel proper present
and with Ms. Allison deposition. for her Defen-
predicate laid
dants are entitled to no less.