*2 BARRETT, McKAY, Before DOYLE and Judges. Circuit McKAY, Judge. Circuit appeal primarily challenges This compensatory damages verdict for in a suit being under 42 so U.S.C. 1983 excessive § require grant of a new trial on the damages. issue of The facts recited herein are either uncontested or consistent with the jury’s verdict. Corriz, Larry years then 18
Plaintiff Fe, age, driving his car to New Santa Mexico, 3, 1976, September when he stopped to with two friends who were visit parked sitting arroyo beginning in their car in an next This was Larry’s Larry parked County his encounter with Rio Arriba alongside road. car officials. shooting, Sometime after the uniden- through theirs and the three conversed initial car, Larry’s deputy stopped tified sheriffs drinking car window. His friends informing they him later, had a warrant for his A few beer their car. minutes Rio they arrest. When refused to show him the Arriba County Deputy Sheriffs Steve Mar- *3 warrant, Larry deputies The drove off. tinez and Canuto Martinez arrived. Steve car barrage fired a of shots at his Martinez was drunk. Claiming they that home, followed him arrest but did not him. marijuana, deputies smelled the arrested Larry’s friends. two The friends informed September shooting came to The 3rd the deputies Larry the that was not involved Vargas, attention of Antonio De chairman bystander. and was an innocent Unida, political of party La Raza minor Nevertheless, Deputy Canuto Martinez County primary Rio Arriba which views its twice Larry’s person searched and his car. purpose halting further of entrenchment leave, He Larry whereupon then told Party Democratic machine the coun- car, Larry got in his backed ty. Naranjo deputies out Sheriff and his are arroyo proceeded indeed, to drive toward members of the party; Santa Democratic point, Naranjo Fe. At that Deputy county Steve Martinez Sheriff is the chairman of gun Larry drew Larry. party. Vargas his Mr. De visited fired at Steve and his family Martinez and advised them to com- testified that he Larry believed plain to Septem- the authorities about the escaping was custody. penetrat- The bullet ber shooting. 3rd At that time no trunk, charges ed the the back seat and the front yet against Larry. had been filed Mr. De seat Larry back, before striking in the Vargas Attorney wrote to the New Mexico causing painful but sparing abrasion his family, urg- General on behalf the Corriz Larry life. driving a hospital continued Naranjo ing removal because of Sheriff where he was treated. He testified that he shooting. Attorney The General was great pain suffered and emotional distress already conducting investigation of an alle- aas result of the shooting. gations of corruption and abuses Rio learning After of the incident from his officials, County focusing particular- Arriba deputies, Sheriff Naranjo Emilio went to ly Naranjo. on Sheriff hospital Larry’s to check on condition. 14,1976, September newspaper On a local Naranjo Sheriff then asked District At- reported Vargas’ the substance Mr. De torney’s office to investigate the matter. complaint Attorney to the General. The Attorney’s District dispatched office very day next Sargeant officially Salazar investigator Freddie Martinez to look into charged Larry custody, escaping with the matter. Investigator Martinez found an Larry arrest warrant was issued. volun- no evidence of wrongdoing part on the court, tarily magistrate surrendered to deputies. the sheriff’s As a result of this property which released him on a bond. In investigation, the Attorney District ordered May Larry moved to dismiss the charges to be against filed Larry escap- charge for to prosecute failure within the ing custody. This order relayed by law, required by time New Mexico and the Investigator Martinez to Griego Lieutenant granted. motion was of the sheriff’s office. Griego Lieutenant Sargeant directed Joe to file Larry’s complaint Salazar alleged four causes of charges against Larry, Sep- which he did on action. Count One states a claim under the tember 1976. The record contains Rights Act, testi- Civil alleging 42 U.S.C. § mony that the District Attorney’s Martinez, Naranjo, office that defendants Steve cooperated had past prosecu- in the Depart- Canuto Martinez and the Sheriff’s tion of false criminal charges to aid deprived Sheriff ment him of without due Naranjo in the process defense civil suits specifically, of law. More he al- him. leged that the defendants invaded his fun- The record counsel for de- rights, proc- the due reflects that protected damental amendment, posit ess adequately clause of the fourteenth fendants did not their ob- detention, illegal be free from the threat of allowing jection instructions abuse, illegal imprisonment, physical and duplicative injuries. the same recovery for support unlawful arrest evidence to deliberations, without jury began its Before charge. pendent is a Count Two state opportunity court afforded counsel prosecution against law claim of malicious object to the Counsel for de- instructions. Naranjo, Department, Sheriff the Sheriff’s instructions, object fendants did to several Steve Martinez and Canuto Martinez. objections of which were overruled. all pendent Count Three is a state law claim of objected Counsel the inclusion of the assault and battery against Steve Martinez in the prosecution claim state- malicious only. as fol- awarded (Instruction No. ment of claims instruction One, against lows: on four Count all de- 4) grounds on the “the evidence shows $30,000; fendants in the sum of Count from the should be dismissed case [it] *4 Two, against Naranjo Sheriff and the Sher- objected aas matter of law.” to Counsel $30,000; Department iff’s in sum of the and deprivation (In- liberty the of instruction Three, on Count against Steve Martinez in 20) that struction No. on the basis “[a]fter $2,273. the jury sum of also The awarded Court has the claims already the stated of punitive $30,000 damages in the amount of parties the number 4 it re- instruction against $20,000 Naranjo, against Sheriff repeats it claims and reem- peats, those [sic] $10,000 Martinez, Steve and Canuto phasizes the claims misconduct of Martinez. deprivation rights.” of Counsel also deprivation liberty claimed that the of I. process applicable without due “is not issue appeal Defendants on that contend the truly the facts here” “not an issue to and is jury’s verdict excessive as a matter was of Counsel further framed the evidence.” law represents recovery” “double for objected damage of instruc- to the elements injuries. the same Plaintiff asserts that (Instruction 42) ground on the that tion No. the challenges jury defendants’ to instruc- jury compensate instructed to the it the tions properly pre- and verdicts not aspects liberty of for the various plaintiff served for review. right such as the deprived, which he was of abuse. Error was physical to be free from Rule 51 of the Rules of Federal Civil . rights of civil claimed “in that violation provides
Procedure that: be, liability would create themselves would At the close evidence or at such damages.” are not measures (cid:127) “The but of earlier time trial the during the as court continued, it,” counsel problem further with reasonably directs, any party may file that either the law guide is there is “[n]o written requests that the court instruct proof you in the set dollar of how jury on the law as set forth in the kind of a—-for of sort on that amount requests. shall The court inform counsel that damage calculation under standard.” proposed upon of its requests action the instruction con- objected also to Counsel prior arguments jury, to their to the but damages for viola- cerning the measure of jury the court shall instruct after the (Instruction of No. rights tion arguments completed. party may are No 43) jury that which instructed the assign giving “[t]he as error the or the failure to difficult as- rights, value of such while give to objects unless he instruction sess, great.” Specifical- be must considered thereto jury before the retires to consider No. ly, objected Instruction verdict, counsel that stating distinctly its the matter element of telling jury “is that objects grounds which he and the of being a damage dam- objection. his shall must be assessed Opportunity given Defendants’ oth- objection age great to make that’s of size.” hearing out of the of jury. objections here. pertinent are not er It is obvious Grande from a review of Western Railroad 438 F.2d objections jury defendants’ instruc 1971). requires Rule 51 coun- objection tions that no was made to allow sel “to abundantly make it clear to the trial ing damage to return un verdicts objecting party’s position.” Rog- court the complaint. der each of Count The ob Co-op., ers v. Northern Rio Arriba Elec. jection prose to submission the malicious Inc., nothing cution claim has do with defend case, sub- the instant the trial court ants’ assertion that the instructions allowed three one jury: mitted verdict forms to the multiple recovery single for a claim, for the civil one the assault injury. objection to Instruction No. 20 claim, battery one for the malicious similarly irrelevant to defendants’ claim prosecution claim. Defendants did not ob- appeal. repeat That not instruction did ject to the submission of the three verdict the claims outlined in Instruction No. 4 but sure, object forms. To be defendants did explained rather what is meant prosecution submission the malicious by a deprivation without due ground claim on the that the elements process of law. Counsel’s claim that proven cause action were not deprivation of liberty issue was not framed objected They matter law. further goes evidence to liability, not submission of the 1983 claim on the § damages. objection to Instruction No. ground sup- there no evidence to point. also misses the As discussed more port shotgun objections it. These are hereinafter, fully although deprivation of do not specificity require- meet Rule 51’s civil is not a of damage, measure it *5 way ment. There was no for the trial court certainly compensable most is a element of damage. depri The fact to know damages for of defendants’ fear that submission rights vation of civil are difficult assess might three verdict forms lead to does not mean damages that such should recovery double on some element dam- not be Piphus, awarded. Carey See v. 435 age. judge be The trial cannot held to the 247, 258, 1042, 1049, U.S. 98 S.Ct. 55 L.Ed.2d apparently standard of omniscience envi- (1978). 252 Finally, objection to In by sioned defendants. struction No. 43 is to the damage size of the allows, award which it rather than to-any Dictionary Webster’s defines “dis supposed duplication in that award. Coun “obvious,” “plain,” tinct” “unmistak sel’s remarks do not meet Rule require 51’s say able.” We cannot defendants’ “double ment grounds objection that the be stat recovery” objection plain, was made much ed “distinctly.” less requirement unmistakable. Rule 51’s the ground objection be “dis stated purpose pre Rule 51 tinctly” requires specificity more than de litigant vent a from taking advantage anof error which could fendants mustered. We therefore hold that be rectified the court if objection called to its by timely spe recovery pre attention the double not objection. cific Taylor v. Denver and Rio our served for review.1 clear, objection 1. judge merged Had defendants made their could One and have Counts Three, curing avoiding the trial court would have been afforded the thus the error opportunity, analyze appellate way, envisioned Rule need for purpose review. In supposed rectify error and it if it were of Rule 51 been served. would have found to exist. We note that one court has Although we do de- not reach the merits of way found a novel to cure the error in a situa recovery objection, fendants’ double we note Garcia, tion such as this. In Linn v. merged that had the court in trial this case 1976), “merged” 855 the trial court Counts One and Three and had the then pendent § and claim with a state law assault $32,273 merged returned a verdict of on the battery “[ijn claim view of rela the close claim, we would not consider such a verdict tionship between the first and second causes of duplicative excessive or in view of the unrebut- possibility action and to avoid the of a double plaintiffs injuries. ted evidence of cited at note 4 infra. See cases case, recovery.” Id. at 857. In this had danger real, of double been the trial telling II. that this element of damage size,” must be great assessed ... of There remains for ques- our review the preserved thus this issue for review. Their tion of jury’s whether the verdict was ex- contention is that only whether, cessive. this instruction misled real issue is claim, the jury awarding defendants into Instruction No. 43 was excessive verdict erroneous. on Count One.
Instruction No. 43 reads as follows: rely Defendants Carey Piphus,
IF
YOU FIND THAT
U.S.
THE PLAIN-
S.Ct.
L.Ed.2d 252
TIFF
(1978),
BEEN
proposition
HAS
DEPRIVED OF A
for their
that substantial
RIGHT,
CONSTITUTIONAL
OR SEV-
cannot be awarded for the depri
RIGHTS,
ERAL CONSTITUTIONAL
vation of
rights per
constitutional
se. Car
YOU MAY AWARD HIM DAMAGES ey
plaintiff
held that a
could recover
TO COMPENSATE HIM FOR THE
nominal
for a procedural
proc
due
DEPRIVATION.
DAMAGES
FOR ess
proof
violation in the absence of
TYPE
THIS
OF INJURY ARE MORE
injury.
actual
Id. at
at
S.Ct.
DIFFICULT TO MEASURE THAN But the violation here was
proce
far from
FOR A
DAMAGES
PHYSICAL INJURY dural.
deprived plaintiff
Defendants
of his
OR AN INJURY TO ONE’S PROPER-
bodily
interests in
integrity and ar
TY.
THERE ARE NO MEDICAL rest
probable
based on
cause. These were
BILLS OR OTHER EXPENSES BY
plaintiff’s
violations of
substantive
WHICH YOU CAN JUDGE HOW protected by
process
the due
clause of the
MUCH COMPENSATION IS APPRO-
fourteenth
Carey,
amendment.
PRIATE.
THE VALUE OF SUCH Court specifically noted that cases award
RIGHTS, WHILE DIFFICULT TO AS-
ing damages
deprivation
of substantive
SESS, MUST BE
CONSIDERED
were not there control
GREAT.
264-65,
ling.
Id. at
at
1052-53.
THE PRECISE VALUE YOU PLACE One need not look far to
authority
find
UPON ANY AND EACH CONSTITU-
proposition
that substantial damages,
TIONAL RIGHT WHICH YOU FIND both compensatory
punitive, may
*6
WAS DENIED TO PLAINTIFF
IS awarded for the violation of substantive
WITHIN YOUR DISCRETION. YOU
rights.2
reject
constitutional
We therefore
MAY WISH TO
THE
CONSIDER
IM-
argument
only
defendants’
that
nominal
PORTANCE OF THE RIGHT OR damages can
depriva
be awarded for the
IN
RIGHTS
OUR SYSTEM OF tion of plaintiff’s substantive fourteenth
GOVERNMENT, THE ROLE WHICH
rights.
amendment
Tyrrell,
See Konczak v.
THIS RIGHT OR THESE RIGHTS
13,
(7th
denied,
1979),
603 F.2d
17
Cir.
cert.
HAVE PLAYED IN THE HISTORY OF
1016,
668,
444
100
62
U.S.
S.Ct.
L.Ed.2d 646
REPUBLIC,
OUR
THE SIGNIFICANCE
(1980);
Parker,
1205,
Baskin v.
602 F.2d
WHICH THIS PARTICULAR ISSUE
(5th
1979)
1210
(rejecting
Cir.
the same
PLAINTIFF,
HAD FOR THE
AND THE
Carey).
erroneous construction of
SIGNIFICANCE OF THE
IN
RIGHT
THE CONTEXT OF THE ACTIVITIES
event,
In
plaintiff produced suf
WHICH PLAINTIFF WAS ENGAGED ficient
damages
evidence of actual
in this
IN AT THE TIME OF THE VIOLA-
justify
case to
a substantial compensatory
TION OF THE RIGHTS.
award under
proved
Count One. Plaintiff
(emphasis added).
objected
Defendants
expenses
to
his medical
earnings.
and loss of
Instruction No.
ground
43 on the
that it “is He testified that he was afraid that he
See, e.g., City
Concerts,
2.
Newport
167,
Pape,
173,
473,
v. Fact
roe v.
365 U.S.
81 S.Ct.
Inc.,
247, 252,
2748,
476,
2752,
Herndon,
453
(1961);
U.S.
101 S.Ct.
898 plaintiff
might go
prison
period
requires
Id. at 1209. Justice
that
during
that
charges
injuries
the false
he lost
pending;
compensated
intangible
be
for the
activities;
interest
in
he can
recreational
he
result
suffered as a
constitutional
work;
light
person-
do
he has
deprivation.
difficulty
setting
suffered
a
ality changes and has lost
confidence
intangible, nonpecuniary,
value
money
himself;
heavily;
he has
begun
drink
he
damages
permitted
but actual
cannot be
police
has a constant
irrational fear
offi-
compensate
society
duty
deter
its
from
has,
cers;
sleeping
he has trouble
a plaintiff.
recurring nightmare
police
in which the
It
law this
that
is the
Circuit
shoot at him
his
kill
brother and
his
so
or inade-
absent
award
excessive
psychiatrist
plain-
brother. A
testified that
quate
judicial
to shock the
conscience
tiff suffers from
traumatic neuroses
and raise an irresistible inference that
may
which he
never recover and recom-
passion, prejudice
improper
or another
year
mended
therapy.
Defendants
trial,
jury’s
cause invaded
deter-
called no
witnesses
rebut the evidence of
damages
mination of the amount of
is
psychological injury. Although some of
inviolate.
these
are not quantifiable with
Nall,
(10th
Ketchum
425 F.2d
precision, they are nevertheless actual dam-
Labiak,
Cir.
Morgan v.
368 F.2d
ages
support
which could
compensatory
(10th
1966).
“Ordinarily
ques-
Cir.
award in this case.
tion
primarily
trial
court alone
damages may
It is settled that
be
presents
and a determination thereof
no
awarded for nonpecuniary injury, such as grounds
appeal except
for reversal on
harm,
psychological
plaintiff
where
has manifest abuse of discretion.” Smith v.
deprived
been
of his substantive constitu Welch,
Parker,
rights.3
tional
Baskin v.
say
We cannot
the award
here
F.2d
1979),
recog
the court
judicial
was so
as to
excessive
“shock the
nized that:
conscience,”
many
other
intangible
they
Emotions are
but
are
upholding large
cases
compensatory awards
perceptible.
none the less
The hurt done
for deprivations
substantive
constitution
to feelings
reputation by
and to
an inva-
al rights.4
we
Thus
are left with defend
sion of
is no less real
argument
ants’
Instruction No. 43
and no less compensable than the cost of
tainted the jury’s
pro
deliberations so as to
repairing
pane
broken window
or a
duce an excessive award.
damaged lock.
psyche
Wounded
and soul
are to
be
salved
as much as
We hold that Instruction No. 43
the property
replaced
that can
at
prejudicial
the was
so
require
not
as to
reversal
local hardware store.
in this case.
See,
Southworth,
e.g.,
(1981)
($72,910);
Brule v.
F.2d
L.Ed.2d 616
Herrera v.
*7
(1st
1979); Halperin
411
Kissinger,
Valentine,
1220,
Cir.
v.
(8th
1981)
606
653 F.2d
Cir.
1231
1192,
(D.C.Cir.1979),
by
F.2d
Pierce,
1207
($300,000);
aff’d
an
1386,
Flores v.
617 F.2d
court,
equally
713,
divided
452 U.S.
101 S.Ct.
(9th
1980),
denied,
875,
1392
Cir.
cert.
449 U.S.
3132,
(1981);
Tyr
(D.C.Cir.1979), by equally aff’d divided ries. This reinforces our conclusion 3132, 69 court, 101 S.Ct. U.S. in the case damage award instant was (1981)(footnotes omitted). L.Ed.2d 367 We require a new trial. not so excessive as to agree with this statement and therefore sum, judge In we hold that the trial did refuse to judge merely reverse the trial refusing not abuse his discretion to order “reasonably spacious ap- because he took a grounds a new trial on the of excessiveness proach” to awarding damages for constitu- have considered the the verdict. We deprivations. tional perhaps While not the by other defendants and contentions raised form,5 preferred Instruction No. 43 did no judg- find them to be without merit. The more they than make clear to the ment below is therefore lightly disregard plaintiff’s should not con- stitutional rights. proper- That instruction AFFIRMED.
ly left valuation of damages entirely within jury’s discretion. DOYLE, Judge, WILLIAM E. Circuit presented, the evidence specially concurring. we are satisfied that the amount of the hereinafter, I For the reasons set forth verdict suggest does not itself that the jury by position adopted Judge concur in the applied an incorrect standard in evaluating McKay, judgment to affirm the of the dis- plaintiff’s damages. testimony The conclu trict court. sively plaintiff shows that underwent dra case, Corriz, plaintiff, In this was shot personality changes matic as a result of the shooting by charged a was later with and the law officer and false arrest. He suffers insomnia, County, from New paranoia, and a crime Rio Arriba Mexico. traumatic may wholly neuroses from which These acts were to be with- he never recover. expert testimony concerning plaintiff’s justification; out the case filed Cor- psychological injury was not allegedly entirely rebutted riz was devoid of sub- defendants. again stopped This situation is like that plaintiff stance. presented in Baxley, Redmond v. 475 a other officers subsequent occasion who F.Supp. (E.D.Mich.1979), and, indeed, where sought to arrest him claimed plaintiff prisoner brought If they 1983 action that had a warrant for his arrest. § for damages resulting rape they they had a warrant did not exe- such *8 occasion, occurred in prison infirmary. Aside from the officers fired cute it. On that physical the injury rape, caused the All of this is set departed. the at him as he plaintiff’s expert “plaintiff Judge testified that forth in the fact statement of flashbacks, was depressed, rape McKay. suffered preferable
A5.
form
See id. at 1227.
of instruction is that used
Valentine,
(8th
in Herrera v.
900
Judge McKay adopted position has the jury, argue theories to the but did not that question that of possible the double recov- overlapped the claims or that the verdict ery objections is not reviewable because forms were such that double exceptions not in trial likely. Judge were made the court. be in suggests, would Barrett Judge McKay further opinion, objec- concluded that the his that defendants did make excessive, were “duplici- verdicts not and that to 4 20 the tion Instructions No. and tous,” complained instruction appellants objection of on and that that the trial damages due apprised to violation of constitutional “crux of court was that the the objections was not erroneous. of was the likelihood double re- covery.” do agree interpre- I not with this objected Defendants to the trial court’s objections. of tation the ground instructions on the that the evi- dence was the support pen- plain- insufficient to all Instruction No. 4 contained of dent alleging prose- state claims malicious objecting tiff’s theories of In there- relief. cution, and to, the claim based on false defendants that only asserted the mali- charges. objected Defendants prosecution also sub- cious be claim should dismissed mission to jury plaintiff’s the claim based on the evidence. Instruction No. 20 that he was deprived liberty without objected due was being repetitious In- process of ground law. The advanced was on ground struction No. the that the not duplication in the federal and deprivation state not support evidence did the claims; objection the was there that a spe- claim. But nowhere there insufficient objected evidence. Also objection plaintiff’s to was cific that the claims damage instruction, the which listed duplicative. the relief overlapping or deprivation of various civil with ele- important specific It is be about the damages. ments of grounds objection. There is a sound objection
The final at issue here was the requirement. require- reason for this objection to Instruction No. precision way stat- ment is the to assure ed part in that “the opportunity value constitutional that the court shall have an rights, assess, while difficult judge depends must make corrections. The great.” considered point up Defendants contend counsel to deficiencies. Where terms, that objections this instruction improperly general they are in do directed the not jury to assess serve large purpose. amount in Rule 51 of the Federal for deprivation provides: Rules of Civil rights, constitutional if Procedure the evidence showed that constitutional party may assign giving No as error the rights had been violated. The instruction failure to un- give instruction as a whole is ambiguous. somewhat It can objects less he thereto the jury before be read as an that verdict, instruction retires its stating to consider dis- rights are important. valuable and If tinctly objects he matter to which judge had intended to grounds tell that objection. (Emphasis his high added.) should be he could have done event, so. the verdict was not exces- The general terms of the rule show that a sive in of the evidence. objection is not sufficient. important factor is objec- This court has in repeatedly held that tions to the instructions reveal no sugges- objection absence of a timely accordance tion of concern for recovery. double De- court, with Rule 51 the trial argued fendants there was not suffi- errors instructions to the will not be cient evidence plaintiff’s to submit two of appeal.1 general considered on A objection Leone, Railway Pool (10th 1967), (10th 1962); 374 961 F.2d Cir. 811 F.2d Cir. denied, Buchanan, cert. (10th Sanders v. F.2d Cir. 300; Lines, Inc., Greyhound 1969); Iannacito v. Denver & Rio Grande L.Ed.2d Smith v. Railroad, Western Hidalgo 1967); Properties, F.2d 1019 F.2d 190 Atchison, Topeka Locke v. and Santa Fe
901
might have been
suiting from that incident
grounds is not
objection
or an
on other
objected to
adequate;
particular
matter
under
I.
awarded
Count
requirements
The same
specified.2
must be
were several different
transactions
There
is
applicable
are
where the form of verdict
have been the
and incidents
could
attacked.3
suggested,
As
basis for the awards.
that de-
It seems clear from
above
awarded is within reasonable limits
amount
regard
fendants’ contentions with
double
considering the seriousness
invasions
recovery
properly
were not
called to the
Whatever lack of clar-
plaintiff’s rights.
attention,
preserved
were not
court’s
have been
ity there
in the verdicts could
is
However,
recog-
for review.
this court has
by specific
cured
instructions. Alternative-
exception
require-
nized a narrow
specific
could have been
ly,
verdict forms
plain
where there is
error.
ments of Rule 51
prob-
provided which would have cured
Co.,
Fabian
W.
evidence in support leged $100,000.00 thereof. damages: (a) for medical the Third Cause of Action or Count On earnings, property expenses, lost $100,000.00 discomfort, (b) Deputy pain (Assault Battery), against *11 and and III and $2,273.00. willful damages for Martinez’s punitive for in amount of Steve Martinez malicious actions. and $30,000.00 against damages: Punitive IV: (4) $20,000.00 of Action or Count Naranjo, against Depu- Fourth Cause Sheriff forth in the realleged all facts set Martinez, $10,000.00 Corriz against and ty Steve addition, and, action first three causes of Deputy Canuto Martinez. Naranjo, Defendant Emilio alleged that judgment in accord- The entered Court County, obligated was of Rio Arriba Sheriff accumulated, verdicts, with those ance of the officers to insure that the actions $122,273.00. The de- for a total award endanger the his command did not under trial, for new timely fendants filed motions subject to persons persons or interests of verdict, notwithstanding the and judgment that, contrary duty to his custody their but remittitur, were denied. all of which notwithstanding complaints numerous and attorney The also awarded Corriz Court depu- of his concerning improper conduct $44,309.75. fees of ties, properly investigate, disci- he failed officers; and, that his pline or train his that the case appellants The contend acts, negligent errors and omissions result- following the reversed based on should be $50,000.00. ed in in the sum (1) verdict was jury’s the claimed errors: represents of law and excessive as a matter Following pre-trial pro- answer and other (2) injuries, multiple recovery for the same ceedings, partial summary judgment was have been instructed on jury the should not (a) granted, as follows: in favor Sheriff of constitutional IV; damages for violation (b) Naranjo in favor on Counts III and issue, (3) the IV, the rights per se or on on III and Canuto Martinez Counts I, should not (c) prosecution in favor of Joe on Counts III issue of malicious Salazar IV, (d) jury and in favor of Martinez the because it Steve have been submitted to on III and IV were Count IV. Counts issues Rights with the overlapped Civil Department. dismissed as to the support Sheriff’s no evidence to because there was Thus, jury before a the case went to trial Naranjo and the claim Emilio this basis: (4) the award of Department, and Sheriff’s (Civil First I Cause of Action or Count because damages must be reversed punitive
Rights): liability compensatory underlying
Against
except
all
Joe V.
properly
defendants
determined and
damages was not
Salazar.
plaintiff’s
it is excessive in
because
(Ma-
damages.
II
Second Cause of Action or Count
actual
Prosecution):
licious
contention, with which
reject
I
Corriz’s
Against all defendants.
defendants
majority agrees, that
(As-
Third
of Action or Count III
Cause
material, signifi-
object to
properly
did not
Battery):
sault and
targeted to defendants’
cant
instructions
Against defendant
Martinez
Steve
instructions, coupled
that
contention
only.
verdicts,
duplicity,
multiple
with the
lead
With full
jury
recovery.
The
for five
case was tried to
confusion and double
days. Separate
requirements
and distinct verdicts were
of Fed.
cognizance of the
Corriz,
U.S.C.A.,
returned in favor of
as follows:
I be-
rule
Rules Civ.Proc.
lieve,
majority,
to the
contrary
I
On the First
of Action or Count
Cause
for the defend-
(Civil
reflects that counsel
Rights), against all four defendants
record
$30,000.00.
object
perti-
to various
adequately
in amount of
ants did
by the Court out of
given
nent instructions
or Count
On the
Cause of Action
Second
jury
and before
hearing
(MaliciousProsecution), against
II
Sheriff
deliberations, particularly in
commenced its
Naranjo
Department in
and the Sheriff’s
Clappier Flynn,
$30,000.00.
light of
fact that our
amount of
Objection
lodged
the law of this
to Instructions 4
supra, had been
Circuit for
duplicitous
improper by
and 20 as
in-
five
prior
months
thereto. The trial court
jecting
upon
into the
issue”
case
“false
objections
“A
overruled the
and stated
note
evidence,
which
there was no
thus an
go
they
will
will start their
concerning
“abstract
statement
p.
Appendix,
deliberation.”
[Joint
359].
[constituting]
violation . ..
...
an issue
purpose
prevent
of Rule 51 is to
truly]
by the evidence.”
framed
[Joint
[not
litigant
taking advantage
of an error
Appendix,
objection
pp.
354].
could
rectified
court
if was
directed
the Court’s
re-
instructions
called
by proper objection.
to its attention
*12
lating
deprivation
liberty
of
to
without due
objection
If
properly
alleged
the
calls
error
statements,
process of law.
cou-
The above
attention,
to the
exception
court’s
then
is pled with defense
to
counsel’s remarks
the
taken
requirement
and the
of Rule 51 is
depri-
Court that these instructions
the
[on
Corp.,
met. Fiedler v.
605
McKea
F.2d 542
“repeats
vation of
those
issue]
(10th
1979); Rogers
Cir.
v. Northern Rio claims
assault
battery,
unlawful ar-
[of
Inc.,
Co-op.,
Arriba Elec.
(2) Co., Inc., in Verdict sum for wood Inc. v. com- Skie Const. pensatory damages “on the issue of F.2d Cunningham mali- Inc., Services, prosecution” Transport cious v. M.G. violation state F.2d against Naranjo law defendants Emilio County Rio Depart- Arriba Sheriff’s Carey Piphus, supra, v. suit involved
ment. damages brought by public school students (3) $2,273.00 Verdict the amount of against under 42 U.S.C.A. school § “on the issue of battery” assault and officials, wherein the were found students against the defendant Steve Martinez. suspended to have school been from without procedural process. due (4) specifi- Court following Verdict amounts and cally involving stated that cases awards of following repre- defendants injuries depriva- caused senting punitive damages: tion of constitutional other than the $30,000.00 Naranjo —Emilio right process of procedural due were not $20,000.00 Martinez —Steve Nevertheless, there controlling. the Court $10,000.00 Martinez —Canuto observed: I believe that compensable transac- Congress To the extent intended tions could arise in which that awards under 1983 should deter § First, essentially case are two: deprivation rights, police initial confrontation resulting in the there no evidence that it meant shooting injury sustained Corriz with his. establish a more deterrent formidable attendant anguish, medical care and mental than that inherent in the award of com and, second, prosecution the malicious claim pensatory damages. See Imbler Pacht shooting followed the incident. man, [409], at 442 [96 Within the factual boundaries of these two (White, J., at L.Ed.2d con 128] *14 transactions, allegation each of federal con- curring judgment). in stitutional rights deprivations must neces- sarily place. find lodging depriva- its Those B. tions, as by identified and submitted the It is less difficult to conclude that dam- court, trial right were: the to be free from ages awards gov- under 1983 should be § detention; illegal right the to be free from by principle compensation erned the of abuse, physical intimidation; coercion and than it apply principle is to con- the right to be free from unlawful arrest crete cases. But over the centuries the thereof; without support evidence in the common law developed of torts has a set right not deprived to be of without implement principle of rules to the that a due process of law and be free from person compensated should fairly be for unlawful and against person excessive force injuries by caused the violation of his and, property; the right not to be legal rules, rights. defining These the subjected filing to the of false criminal damages elements of prerequi- and the charges. ap- sites for their recovery, provide the Corriz sought relief under each cause of propriate starting point injury for the action in stated his First Amended Com- under 1983 as well. § plaint predicated operative sup- the facts however, clear, It is not common- porting first, two basic assault provide occurrences — law tort rules damages of will a and, and battery, second, prosecu- malicious complete damages solution to the issue in tion. The complaint anchored these causes cases, every 1983 case. In some the § of action to legal alternate theories to sup- protected by particular interests branch port the same sought. relief Under these may parallel of the common law of torts circumstances, Corriz was to only entitled closely protected partic- the aby interests one compensatory award if liability cases, should right. ular constitutional In such be found on of all the theories in- may appropriate apply it the tort volved. Clappier Flynn, supra; Green- directly damages, rules of to the 1983. § entitled to receive. The Court observed Adickes v. H. Kress & See S. 1598, [144], judicially 1641- issue must be damages at 231-232 S.Ct. the [90 1642, (Brennan, 26 L.Ed.2d J. concur- manageable: 142] cases, ring dissenting). In other the remedy surely appropri- ... a damages protected by a consti- particular interests damages ate in this case.... Relief in right may protected tutional not also be judicially manageable, would be for the by analogous an branch of the common presents case a focused remedial issue law Pope, of torts. See Monroe v. questions without difficult of valuation or 473, [167], at U.S. and n. 5 S.Ct. [81 Litigation causation .. . under Title VII (Harlan, J., at 5 L.Ed.2d con- Rights given 492]. of the Civil Act of 1964 has curring) cases, ... In those the task will great experience federal courts evaluat- be the more adapting difficult one of ing illegal pay claims for back due to sex provide common-law rules discrimination. fair compensation injuries by caused p. p. at at U.S. deprivation of a right. constitutional [Emphasis supplied].
4c
[*]
4c
H<
4:
4c
Unlike Davis v.
Passman, supra,
the case
bar,
...
In
purpose
order to further
light
at
in
of the Court’s instructions
governing compensation
relating
alleged deprivations
the rules
§
Cor-
injuries
by
deprivation
rights,
caused
riz’s
when cou-
federal constitutional
tendered,
pled
presented
with the verdicts
should be tailored to
difficult,
focused remedial issue with
con-
protected by
particular
interests
fusing
duplicitous questions of valu-
right
question just
as the common
and/or
—
ation or causation.
law rules of
themselves
defined
protected
interests
recurring practice
of the
various branches of tort law.
pleading
joining
a state tort claim-rem-
256-259,
pp.
pp.
at
U.S.
98 S.Ct. at
edy with a
1983 federal constitutional
§
1048-1050.
rights deprivation claim-remedy involving
facts,
operative
identical
the courts must be
bar,
In the case at
I conclude that
ever
avoid
based
alert
double
alleged deprivations of Corriz’s federal con-
upon
legal
seeking
theories
alternative
stitutional
fit
the “mold” and are
The risks
confusion
same relief.
protected by
analogous
branch of com-
complication engendered
try-
and undue
mon-law tort rules
damages recognized
ing a
state tort claim with a
common-law
under
the laws and
courts
*15
point-
claim were
1983 federal civil
§
State of New Mexico.
supra. We
Clappier
Flynn,
ed out
v.
Carey
Piphus, supra,
v.
was addressed in
courts thus
there recommended that
trial
Passman,
228,
Davis v.
U.S.
problems of
presented with the difficult
(1979).
Supreme
the answers are appropri-
ate judgment upon the verdict answers pursuant
shall be entered to Fed.Rules Civ.
Proc. rule 28 U.S.C.A. When the an-
swers are inconsistent with each other and
one or more is also inconsistent with the
verdict, judgment shall not be entered and
the district court must return the
further consideration of its answers grant
verdict or a new pursuant trial
Fed.Rules Civ.Proc. rule 28 U.S.C.A. treading dangerous We are ground
ignore the fact Clappier v. Flynn, su
pra, was the law of this Circuit five prior
months to the Corriz trial. We have
not hesitated to reverse and remand where
circumstances have changed between the
ruling of the trial court and the decision on
appeal. Amador D. Elephant v. Mestas Irrigation District,
Butte No. 79-1689 Cir., Unpublished, 4/2/81). Thus, Rule 51
cannot have exclusive application in this However,
case. even should agree, I so it is my view that the objections posited, when
considered in Clappier Flynn, v.
require reversal and remand. SILKWOOD,
Bill M. Administrator of the Silkwood,
Estate of Karen G.
Deceased, Plaintiff-Appellee, CORPORATION, KERR-McGEE corporation,
Delaware and Kerr-McGee Corporation,
Nuclear corpo- Delaware *16 ration, Defendants-Appellants.
No. 79-1894.
United States Appeals, Court of
Tenth Circuit.
Argued Nov. 1980.
Decided Dec.
Rehearing 19, 1982. Denied Feb.