Robert KERMAN, Plaintiff-Appellant,
v.
THE CITY OF NEW YORK, "John" Dilucia, (Shield # 28683), "John" Crossin, (Shield # 499), "John" Paccio, (Shield # 30126), "John" Goldman, (Shield # 1818), "John" Jenkins, (Shield # 10030), "John" Morgan, (Shield # 11995), first names being fictitious and John Hume, Thomas Loomis, Steve Kaminski, Mark Demarco, Andrew Oberfeldt, James Moran, Edward Joergens and "John Doe", "Richard Roe", "Jane Doe", (the last three names being fictitious, said individuals being police officers or other employees of the City of New York who participated in taking plaintiff, Robert Kerman into custody or dispatching police officers to Robert Kerman's home as set forth in the complaint), Defendants-Appellees.
Docket No. 03-7243.
United States Court of Appeals, Second Circuit.
Argued: November 3, 2003.
Decided: June 28, 2004.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Gregory Abbey, Brooklyn, New York, for Plaintiff-Appellant.
Marta Ross, Assistant Corporation Counsel, New York, New York (Michael A. Cardozo, Corporation Counsel for the City of New York, Edward F.X. Hart, William S.J. Fraenkel, New York, New York, on the brief), for Defendants-Appellees.
Before: FEINBERG, KEARSE, and RAGGI, Circuit Judges.
Judge RAGGI dissents, in part, in a separate opinion.
KEARSE, Circuit Judge.
This case returns to us after proceedings on remand following an appeal in which we, inter alia, reversed district judges' dismissals as a matter of law, on the ground of qualified immunity, of certain claims brought by plaintiff Robert Kerman under 42 U.S.C. § 1983 against defendant William Crossan (styled "`John' Crossin" in the caption), a New York City police officer, in connection with Crossan's order that Kerman be detained and taken to a hospital for psychiatric observation, see Kerman v. City of New York,
I. BACKGROUND
The events leading to the present litigation are described in Kerman II,
A. The Events
It is undisputed that at about 5 or 6 a.m. on October 20, 1995, Kerman, who had a history of depression and borderline personality disorder, telephoned his girlfriend Phyllis Landau and stated that he might purchase a gun to commit suicide and might kill his treating psychiatrist, Dr. Morris Brozovsky, as well. Landau was aware that Kerman had recently stopped taking antidepressant medication in preparation for his participation in an experimental study conducted by the New York State Psychiatric Institute at Columbia Presbyterian Hospital. At approximately 11 a.m., she telephoned Dr. Kevin Malone, the psychiatrist in charge of that study, and described her conversation with Kerman. On Dr. Malone's recommendation, Landau then called 911. She gave the 911 operator Kerman's address and telephone number and stated that a mentally ill man at that address had recently ceased taking antidepressant medication he had been taking for roughly 20 years, that he had called her that morning while drunk and irrational, and that he might have a gun. Landau did not disclose Kerman's name, her own name, or her relationship with Kerman.
The 911 operator relayed Kerman's address to City police officers, stating that there was an emotionally disturbed person there, possibly with a gun, but providing no further information. Shortly thereafter, a team of officers arrived at Kerman's apartment, rang the doorbell, and pounded on the door until Kerman responded. Kerman, who had been in the shower, eventually opened the door a crack wrapped in a towel, whereupon the officers burst through. Kerman testified that the door hit him in the head and knocked him to the floor and that, in the process, the towel in which he had wrapped himself came off, leaving him naked. The force of the entry also ruptured a plastic bag of usеd kitty litter, which Kerman had placed near the front door in order to remind himself to take it out, and strewed its contents across his foyer. Kerman, still wet from his shower, became covered in kitty litter when he was knocked to the floor.
The officers immediately handcuffed Kerman with his hands behind his back and searched his apartment for a gun. No gun was found.
Some 30 minutes after the officers' initial entry, two New York City emergency medical services paramedics arrived. Throughout this time, Kerman had remained handcuffed and naked. The police officer in charge was then-sergeant Crossan. At about 1:00 p.m., on Crossan's instructions, the paramedics placed Kerman, still handcuffed, in a "restraint bag" and took him to Bellevue Hospital. At Bellevue, Kerman's handcuffs were removed, but he was held overnight for observation. He was released the next day.
The evidence as to the relevant conduct of the respective parties at Kerman's apartment after completion of the search for a gun, and as to certain events at the hospital, is discussed more fully in Parts I.D., II.A.2., II.A.3., and II.C. below.
B. Kerman I and the First Trial
Kerman commenced the present action against the City, Crossan, and eight other City police officers under 42 U.S.C. § 1983, alleging, inter alia, that his Fourth Amendment rights had been violated by the warrantless entry into his apartment, by his initial seizure, and by his subsequent involuntary detention and hospitalization. Kerman also asserted that various ways in which the officers treated him after the initial seizure — which included keeping him naked, refusing to let him give medicine to his sick cat, sending him to the hospital, transporting him on his back with his hands painfully cuffed under his 270-pound body, and sending him to Bellevue Hospital rather than to a hospital closer to his home or to Dr. Malone — were motivated by Crossan's desire to retaliate against Kerman for exercising his First Amendment right by expressing derogatory views of the policemen in his apartment and threatening to sue them. The complaint also asserted state-law claims principally for battery, false imprisonment, and intentional infliction of emotional distress.
In Kerman I, District Judge Lawrence M. McKenna, to whom the case was then assigned, granted partial summary judgment in favor of all nine police officers, dismissing all of Kerman's claims except those alleging that the officers' actions after they handcuffed Kerman (1) violated his federal constitutional right not to be subjected to excessive force and (2) constituted battery in violation of state law. As to the dismissed claims against the individuals, the court ruled, inter alia, that the conduct attributed to them was reasonable and that they were thus entitled to qualified immunity as a matter of law on Kerman's First Amendment and unlawful seizure claims. See Kerman I,
The court dismissed Kerman's § 1983 claims against the City for lack of any allegation or evidence that the alleged deprivations of his constitutional rights resulted from any municipal policy or custom. See id. at *8. The state-law battery claim against the City was not dismissed; the City does not dispute that it would be liable for intentional state-law torts found to have been committed by the officers. The § 1983 claim against Crossan for excessive force and the state-law claims against Crossan and the City for battery remained for trial.
Thereafter, the case was reassigned to Judge Patterson, and a jury trial was held on the two undismissed claims. The jury found in favor of all of the officers on the battery claim and in favor of all officers except Crossan on the excessive force claim. On the excessive force claim against Crossan, the jury awarded Kerman compensatory damages of $75,000 and indicated that punitive damages were warranted. The district court viewed the jury's verdict in favor of Crossan on the battery claim but against him on the excessive force claim as inconsistent, and it instructed the jury to resume deliberations. When the jury thereafter was unable to reach a unanimous verdict on the excessive force claim, the court granted a motion by Crossan pursuant to Fed.R.Civ.P. 50 for judgment as a matter of law ("JMOL"), dismissing that claim on the ground that Crossan was entitled to qualified immunity. Accordingly, judgment was entered dismissing all of Kerman's claims against all defendants.
C. This Court's Decision in Kerman II
Kerman appealed virtually all of the district judges' rulings, and in Kerman II we affirmed most of those decisions, including the dismissals of all claims against the officers other than Crossan. However, with respect to Kerman's detention and involuntary hospitalization after the officers had searched for and failed to find a gun, we reversed Judge McKenna's grant of summary judgment dismissing the First and Fourth Amendment claims against Crossan for, respectively, retaliation and unlawful seizure, as well as the state-law claims against Crossan and the City for false imprisonment and intentional infliction of emotional distress. We also reversed Judge Patterson's qualified-immunity-based grant of JMOL in favor of Crossan on Kerman's claim for use of excessive force after the officers failed to find a gun.
In reversing Judge McKenna's immunity-based grant of summary judgment dismissing the claims relating to involuntary detention and hospitalization, we noted that although the police may be entitled to hospitalize a person "if his conduct or the condition of his apartment demonstrate[s] a dangerous mental state," an officer who orders a warrantless seizure and detention for psychiatric evaluation cannot escape liability if his decision is "outside the bounds of both the Fourth Amendment and the qualified immunity standards of objective reasonableness." Kerman II,
First, there was an issue as to whether Crossan — who alone made the decision that Kerman should be sent to the hospital, see
We recognized in Kerman II that police officers often must make instant assessments with regard to a person's mental health and must be accorded considerable latitude as to the judgments they reach. From the above evidence, however, a jury could find that, after the officers' initial entry, restraint of Kerman, and search for a gun, Crossan had had an unhurried "opportunity to consult a medical professional familiar with the patient's condition," had forgone that opportunity, and indeed had "deliberately ignored two opportunities to confirm the seriousness of Kerman's condition."
Factual disputes also existed with respect to Kerman's demeanor and conduct over the course of his encounter with the police. Although the officers' testimony characterized Kerman as "ranting, screaming and acting unstable," Kerman testified that he was calm and cooperative during most of the incident. Id. Further, there was a dispute as to the condition of Kerman's apartment. Though the officers portrayed it as a proverbial "Augean stable," Kerman said it was, "at worst, untidy." Id.
Accordingly, we remanded for trial of Kerman's constitutional and state-law claims against Crossan and the City for unlawful detention and involuntary hospitalization, as well as for the manner in which Kerman was treated after his initial seizure and handcuffing, including the alleged retaliation and use of excessive force. We stated as follows:
Kerman's allegations are serious and given his account Judge McKenna's summary judgment for Officer Crossan on qualified immunity grounds was not appropriate .... However, defendants tell a different story, and given the disputed accounts, a jury should decide what transpired between the officers and Kerman. Once the outstanding factual questions are answered, there will remain for decision in the district court the issues of whether officer Crossan violated the Fourth Amendment and, if so, whether he is nevertheless entitled to qualified immunity.
D. The Evidence at the Second Trial
On remand, a jury trial was held on (a) the Fourth Amendment claims against Crossan for unlawful detention, involuntary hospitalization, and use of excessive force, (b) the First Amendment claim against Crossan for retaliation, and (c) the state-law claims against Crossan and the City for false imprisonment and intentional infliction of emotional distress. The evidence at trial included testimony by Kerman, Landau, Pontrelli, Crossan, and several other police officers, and deposition testimony of Dr. Malone.
Kerman again testified, inter alia, that after the officers had searched for a gun in vain, they kept him handcuffed and naked. He indicated that although he was shocked by the entry and presence of the policemen, and although he made caustic remarks to and about the officers, he was not lacking in calm. Although two police officers testified that Kerman's apartment was filthy and smelled of cat urine and feces (see Tr. 283) and that the sink was full of flatware and dirty dishes (see Tr. 270), Kerman testified that though the apartment was "messy[ and] very disorganized" (Tr. 504), it was merely "messy, but not dirty" (Tr. 505). Kerman testified, "I kept the kitchen clean. And I kept the bathroom immaculate" (Tr. 505), explaining that he kept the place clean because his cat had had a kidney transplant (see Tr. 77) and needed to be protected against infection (see Tr. 505). Kerman stated that the condition of his foyer — which, after the officers entered, was covered with kitty litter and cat feces — resulted from the officers' crashing through his door and causing the waste bag, which he had planned to take out, to burst open.
Kerman testified that while the officers were in his apartment, he gave officer John Hume the name and telephone number of his psychiatrist, Dr. Brozovsky; Hume called, got no answer, and hung up. After Kerman suggested that Hume leave a message for Dr. Brozovsky to call the apartment, Hume did so. Kerman also testified that before Crossan caused him to be taken to Bellevue Hospital, Crossan cut off a telephone call to Dr. Malone after Kerman told Pontrelli that Dr. Malone wanted to speak to the police. Pontrelli had placed the telephone to Kerman's ear; Kerman asked Dr. Malone to "get these goons out of my house" (Tr. 136), whereupon Crossan grabbed the phone from Pontrelli and pushed the "off" button, hanging up (Tr. 485).
Landau testified that she telephoned Kerman's apartment while the officers were there and identified herself as the person who had called 911. (See Tr. 234-35.) The person to whom she spoke — eventually identified as officer Hume — hung up on her. (See Tr. 236.) Dr. Malone, in his deposition, testified that while the officers were in Kerman's apartment one of the paramedics telephoned him and allowed Kerman to speak to him; but when Kerman asked Dr. Malone to "get these goons out of here," the telephone call "was terminated" because "the phone was hung up .... in the middle of [the] conversation." (Tr. 652.) Dr. Malone testified that while they spoke, Kerman had seemed "coherent," "insightful," and even "witty." (Tr. 662-63; see id. at 652 (Kermаn, when asked by Dr. Malone why he was upset about the officers searching his apartment for a gun, "said `That he used lawyers, not guns'").) Dr. Malone testified that he did not speak to any police officer. (See, e.g., Tr. 651, 654.)
Crossan testified that he made the decision to remove Kerman from his home and send him to the hospital (see Tr. 524), and he denied having hung up on anyone (see Tr. 569). Crossan described his normal procedures in responding to complaints about emotionally disturbed persons (see, e.g., Tr. 610-14), but he remembered few details of the events involving Kerman (see, e.g., Tr. 623, 625). Crossan remembered that the radio dispatch that directed the officers to Kerman's apartment mentioned an emotionally disturbed person and a firearm. (See Tr. 542, 615; see also id. at 276 (testimony of officer Daniel DiLucia: "We received a central radio call saying that there was an EDP [emotionally disturbed person] with a gun.... Nothing other than that.").) Crossan did not recall whether he telephoned the dispatcher to obtain any further information about the 911 call. (See Tr. 529-32.)
Crossan did not recall whether he had had any conversation with Kerman. (See Tr. 552.) He did not recall whether Landau telephoned the apartment. (See, e.g., Tr. 549.) Crossan remembered that officer Hume (who testified at the first trial but not at the second) was in the apartment and spoke with someone on the telephone; but Crossan could not recall whether Hume spoke with Landau, or whether he heard Hume's side of any conversation, or whether he had any discussion with Hume. (See, e.g., Tr. 528-29.) Crossan also did not recall whether Kerman had a telephone conversation with his doctor (see Tr. 556). Further, although two other police officers testified that they had seen Crossan talking on the telephone in Kerman's apartment and believed he was speaking with a psychiatrist because he was addressing someone as "Doctor" or "Doc" (Tr. 398, 401-02, 452-53), Crossan did not remember whether he had any conversation with Kerman's doctor or indeed whether he spoke on the telephone with anyone (see, e.g., Tr. 550-52, 529).
Crossan testified that Kerman was incoherent and would not calm down. (See Tr. 536.) At his deposition, Crossan had described Kerman's behavior as irrational only in that Kerman was "`[s]creaming and yelling'" (Tr. 537; see also id. ("`Q. Anything else in addition to screaming and yelling? A. Not that I recall specifically.'")); at trial, Crossan testified that he would not regard screaming and yelling in and of itself as fitting within the definition of conduct that was likely to result in harm to oneself or to others (see Tr. 532-33). Crossan also did not recall any of the contents of Kerman's shouts except that there were references to Hitler and Mark Furhman; Crossan did not consider those references to be an indication of dangerousness. (See Tr. 537-39.)
Crossan testified that "[t]he only thing that made this case memorable was the fact that Mr. Kerman was naked." (Tr. 627.) Crossan did not regard a person's nakedness in his own home, in and of itself, to be an indication of dangerousness to himself or others. (Tr. 543.) However, Crossan did not recall asking Kerman why he was naked, although Crossan would have considered the reason for his being in that condition to be material to an assessment of whether Kerman was dangerous. (See Tr. 546-48.)
As to the events following the order that Kerman be taken to the hospital, Kerman testified, inter alia, that when he arrived at Bellevue, he was given a hospital gown and paper slippers to wear (the police officers had let him put on only sweatpants before sending him to the hospital); the handcuffs were removed, and he was allowed to make local telephone calls. However, he was placed in a room that had a red line on the floor and was ordered not to cross that line without permission; he was not allowed to use the bathroom without permission; and he "felt like [he] was in prison" (Tr. 152). Kerman was never formally admitted to Bellevue but was kept there overnight.
Kerman testified that he suffered physical pain from the manner in which he was treated, including being transported to the hospital on his back with his hands cuffed under him. He testified that he suffered emotional distress from various aspects of the incident and from the event as a whole. There was also evidence that Kerman developed post-traumatic stress disorder as a result of the event and that his prior depression worsened.
E. The Instructions, the Jury Interrogatories, and the Verdict
Prior to the submission of the case to the jury, Crossan and the City moved for judgment as a matter of law with respect to Kerman's claim of retaliation for the exercise of his First Amendment rights. Their attorney stated as follows:
It's the defendant's [sic] position that Rule 50 should be granted. We don't believe that certainly any reasonable juror could conclude, and in fact we do not believe that the law permits First Amendment violations [sic] for the specific acts that are complained of herein, at least insofar as it includes keeping plaintiff naked while in his apartment, refusing to allow plaintiff to medicate his cat, and sending him to one particular hospital rather than another particular hospital. We don't believe that certainly at the bare minimum, none [sic] of those could constitute a First Amendment retaliation claim no matter what plaintiff establishes. I don't believe any of those rise to the level.
(Tr. 666.) The district court reserved decision.
The jury was asked to return a general verdict and to answer 17 written interrogatories. The parties agreed on the following interrogatories, some of which repeated factual questions that were common to different legal claims. With respect to the federal claims and the claims of false imprisonment, the jury was asked whether Kerman proved that Crossan, personally or through his subordinates, intentionally or recklessly subjected Kerman to excessive force after he was placed in handcuffs (Question 1); if so, whether those acts were a proximate cause of injury to Kerman (Question 2); whether Crossan proved that, after completion of the search for a gun, probable cause existed to keep Kerman in custody and cause him to be taken to the hospital (Questions 3, 7, and 8); if so, whether the postsearch custody and hospitalization were a proximate cause of injuries to Kerman (Questions 4 and 9); whether Kerman proved that various listed acts by Crossan were motivated or substantially caused by Kerman's exercise of his free speech rights (Question 5); and if so, whether Kerman proved that those acts chilled his right to free speech (Question 6). As to the claim of intentional infliction of emotional distress, the jury was asked whether Kerman proved that Crossan's conduct toward him was so outrageous or shocking that it exceeded all reasonable bounds of decency (Question 10), or caused him severe emotional distress (Question 11); and whether Kerman proved that Crossan acted with the desire to cause him such distress (Question 12), or under circumstances that Crossan should have known would cause Kerman severe emotional distress (Question 13), or recklessly and with utter disregard of the possible consequences (Question 14). As to damages, the jury was asked "[w]hat amount of damages do you find Plaintiff suffered" as a result of defendants' actions (Question 15); if it found no such damages, whether it wished to award nominal damages of $1 or less (Question 16); and whether it wished to award punitive damages (Question 17).
To the extent pertinent here, the district court instructed the jury that, with respect to Kerman's Fourth Amendment claim for unlawful seizure and his state-law claims for false imprisonment, the elements were essentially the same. (See, e.g., Tr. 756.) In describing these claims, the court stated:
[A] person may not be taken into custody and brought to the hospital without probable cause. In considering this element, you may consider New York Mental Hygiene Law, section 9.41, which states: "Any ... police officer ... may take into custody any person who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others."
New York Mental Hygiene Law does not require that the threat of substantial harm to oneself or others be evidenced by an overt act, attempts or threats. The threat of harm can be еvidenced by the behavior of the person or by neglect or refusal to care for oneself, as long as that behavior, neglect or refusal to care for oneself was likely to result in serious harm to himself or others.
(Tr. 749-50.)
In describing the nature of probable cause, the district court instructed that
[i]n order for a police officer to have probable cause to keep a person in custody and bring him to the hospital, the police officer must have information that would lead a reasonable police officer who possesses the same information as the officer to conclude that the person being taken into custody and brought to the hospital appears to be mentally ill and is conducting himself in a manner which is likely to result in serious harm to himself or others. The officer making the decision should take into consideration all the evidence of plaintiff's mental condition available to him under the circumstances, whether it be favorable or unfavorable.
(Tr. 750 (emphasis added).) The court instructed the jury that the burden was on Crossan to prove the existence of probable cause for Kerman's detention and hospitalization. (See Tr. 751.)
With regard to Crossan's defense of qualified immunity, the district court had stated in colloquy with counsel that "there have to be findings put to the jury that relate not to the conclusion of the qualified immunity but to the facts underlying it," identifying "the factual finding" as whether Crossan had "[p]robable cause to send [Kerman] to the hospital." (Tr. 465.) Agreeing with this view, Crossan asked the court to instruct the jury that "[d]efendant Crossan claims that he had probable cause to keep plaintiff in protective custody and send plaintiff to the hospital for observation, and thereby had qualified immunity for the federal claims asserted." (Defendants' Requested Charge to the Jury, dated April 18, 2002, at 6 (emendations omitted).) The court instructed the jury accordingly, albeit "without reference" to the term qualified immunity (Tr. 676), reiterating virtually verbatim its prior instruction on the nature of probable cause, i.e., that
the police officer must have information that would lead a reasonable police officer who possesses the same information as the officer to conclude that the person being taken into custody and brought to the hospital appears to be mentally ill and is conducting themselves [sic] in a manner which is likely to result in serious harm to himself or others.
(Tr. 755.) The court followed with a virtually verbatim repetition of its earlier instruction that "[t]his does not require that the threat of substantial harm be evidenced by an overt act, attempts or threats. Threat of harm can be evidenced by the behavior of the person or by neglect or refusal to care for oneself as long as that behavior, neglect or refusal to care for oneself was likely to result in serious harm to himself or others." (Id.)
On injury and proximate cause, the court instructed that
if you find that the defendant Crossan's action deprived plaintiff of his right to be free from unlawful seizure, you must consider whether plaintiff has shown by a preponderance of the evidence that the deprivation of plaintiff's constitutional right to be free from unlawful seizure is the proximate cause of the injuries he is alleging.
(Tr. 751.) The court referred to Kerman's assertions of physical pain and mental suffering and to "that amount of money which will fairly and reasonably make plaintiff whole or compensate him for the physical pain and suffering and/or the mental anguish that he has shown he sustained." (Tr. 760-61.) The court stated that
[c]ompensatory damages are damages which compensate the plaintiff for the injuries which the defendant wrongfully caused him. They are damages which fairly and reasonably compensate plaintiff for his medical expenses and the pain and the injury, including the emotional and mental anguish that he claims he sustained as a consequence of the defendant's violation of his constitutional rights or violation of state law. Plaintiff's right to recover damages is not limited by the fact that his injury resulted from an aggravation of a preexisting condition.
(Tr. 760 (emphasis added).) The court also instructed the jury that it could award Kerman nominal damages:
Nominal damages may be awarded when the plaintiff has been deprived of a right or [sic] has suffered no actual damages as a natural consequence of that deprivation. Therefore, if you find that the plaintiff has suffered no injury as a result of any of the defendant's conduct, other than the fact of the deprivation of a legal right, you may award, if you so choose, nominal damages not to exceed $1.
(Tr. 761.) However, the court instructed the jury that it should not reach the issue of damages at all unless it found that Kerman had carried his burden of proving liability:
If you find that the plaintiff carried his burden of proving by a preponderance of the evidence that the defendant violated any of his constitutional rights, or that the defendant in this case violated New York State tort law, and that those acts were a proximate cause of damages to the plaintiff, then, but only then, must you consider the amount of damages which will fairly and reasonably compensate plaintiff for those injuries sustained as a result of that violation of his constitutional rights or a violation of New York State law.
.... Obviously, you need not reach the issue of damages, unless you determine that plaintiff has established liability on any one of his claims by a preponderance of the evidence.
(Tr. 759-60 (emphases added).)
The jury found that Kerman was entitled only to an award of nominal damages on his claims for unlawful seizure and false imprisonment. It rejected his claims (1) that Crossan's treatment of Kerman was motivated by Kerman's exercise of his free speech rights, (2) that Crossan personally or through the other officers subjected Kerman to excessive force after placing him in handcuffs, and (3) that Crossan intentionally and outrageously subjected Kerman to emotional distress. (See Tr. 781-83.) However, as to both Kerman's Fourth Amendment claim for unlawful seizure after the completion of the search for a gun and his parallel state-law claims for false imprisonment, the jury found that Crossan had failed to prove that probable cause existed to keep Kerman in custody and cause him to be taken to the hospital. (See Tr. 781, 783.) Nonetheless, with respect to the seizure and false imprisonment claims, the jury found that Kerman had not proven that his continued custody or involuntary hospitalization were a proximate cause of injuries. (See Tr. 781, 783.) The jury found that Kerman should not be awarded compensatory or punitive damages (see Tr. 783-84) but that he should be awarded "nominal damages of one dollar or less" (Tr. 784).
The district court, ruling that the jury "ha[d] returned a verdict in favor of the defendants," entered judgment dismissing the complaint in its entirety. (Judgment dated April 23, 2002.)
F. The Posttrial Motions and Kerman III
Following the entry of judgment, Kerman promptly moved pursuant to Fed.R.Civ.P. 60 for correction of the judgment to reflect that the jury had found in his favor on the Fourth Amendment unlawful seizure and state-law false imprisonment claims. He also moved pursuant to Fed.R.Civ.P. 59 for a new trial with respect to damages on those claims. At the hearing on those motions, Crossan argued that the jury had found against Kerman on liability because it found that Kerman had not proved that Crossan's restraints without probable cause were the proximate cause of the injuries he claimed. (Posttrial Hearing, July 10, 2002 ("Posttrial Tr."), at 5-8, 12-13; see also id. at 31 ("The jury said there is no liability").) To parry Kerman's anticipated response that the jury must have found liability because it found that nominal damages should be awarded (see id. at 9-10), Crossan argued that the court "c[ould] examine this verdict form and find that it's consistent" by inferring that the jury had found that, though there was no probable cause to detain Kerman and send him to Bellevue, Kerman "ha[d] suggested that he [wa]s willing to go" (id. at 17; see id. at 14-17).
In addition, at the oral argument of these motions, Crossan argued for the first time that the court should leave the judgment undisturbed because he was entitled to qualified immunity. Kerman argued that Crossan was not entitled to judgment on that basis because, inter alia, he had not asked that the questions necessary for the resolution of all of the factual issues material to that defense be put to the jury (see Posttrial Tr. 23), and because the Kerman II opinion held that, taking the evidence in the light most favorable to Kerman, Crossan was not entitled to qualified immunity as a matter of law (see id. at 40). At the request of the district court, the parties thereafter briefed the issue of qualified immunity.
In an opinion dated February 11, 2003, Kerman v. City of New York, No. 96 Civ. 7865(RPP),
[t]his Court entered judgment in favor of Defendants because the jury found that (1) Plaintiff had not proved by a preponderance of the evidence that the continued custody of Plaintiff after the search for the gun was a proximate cause of injury to Plaintiff and (2) Plaintiff had suffered no actual damages; and because Plaintiff's summation did not ask the jury for an award of nominal damages based solely on a deprivation of his Constitutional rights.
Id. at *3. The court concluded that Kerman's Rule 60 motion had merit because a Fourth Amendment violation could warrant a judgment for nominal damages without proof of actual damages. See id. However, the court ruled that the judgment should nonetheless remain unchanged because any correction of the judgment would be "mooted" by reason of the court's conclusion in Kerman III that Crossan was entitled to judgment as a matter of law on the ground of qualified immunity. Id. at *1, *8.
In ruling that Crossan was entitled to qualified immunity, the district court held both that "Crossan's actions did not violate clearly established law" and that "it was objectively reasonable for Defendant Crossan to believe that his action did not violate existing law." Kerman III,
In determining that Crossan's actions were objectively reasonable, the court stated that it "w[ould] disregard" the defense testimony that Kerman "was screaming and yelling, was incoherent, and would not calm down," given Kerman's testimony to the contrary; but it found that "there is no dispute that Defendant Crossan and his fellow police officers ascertained that Plaintiff was under psychiatric care and was conducting himself in a manner that was likely to result in serious harm to himself and others." Id. at *7. The evidence not disregarded by the court was, apparently, testimony that Kerman "refus[ed] to respond to questions or to allow a complete physical examination to be taken by EMS paramedic, Pontrelli," id. at *6. The court also found that "[t]he filthy conditions in Plaintiff's apartment [were] testified to by the officers and admitted by Plaintiff," id., and that those conditions and Kerman's appearance — "`wearing nothing'" and "`covered in kitty litter,'" id. at *7 (quoting Tr. 122) — provided "signs that [Kerman] was unable to care for himself," id.
The court also ruled that Crossan was entitled to immunity under state law:
Lastly, § 9.59 of the New York Mental Hygiene Law provides that "any police officers ... who are taking into custody and transporting a person to a hospital ... shall not be liable for damages for injuries alleged to have been sustained by such person ... unless it is established that such injuries... [were] caused by gross negligence." Defendant Crossan's actions do not rise to the level of gross negligence, i.e. reckless disregard or intentional wrongdoing. See e.g., Woody v. Astoria General Hospital,
Kerman III,
Thus, the April 23, 2002 judgment, dismissing all of Kerman's claims, remained unchanged. This appeal followed.
II. DISCUSSION
On appeal, Kerman contends principally that the district court could not properly grant judgment in favor of Crossan on the basis of qualified immunity because (a) Crossan waived the defense by not pursuing it at trial; (b) the district court's ruling that Crossan was entitled to qualified immunity as a matter of law was foreclosed by Kerman II's holding that Crossan was not entitled to summary judgment on that defense; and (c) the district court's ruling was based on factual findings by the court that usurped the function of the jury. Kerman also contends that the district court abused its discretion in denying his motion for a new trial on the issue of damages. While we do not agree with certain of Kerman's waiver arguments, we conclude, for the reasons that follow, (1) that the court erred in ruling that Crossan was entitled to qualified immunity, and (2) that the court should have granted a new trial as to damages on Kerman's Fourth Amendment and false imprisonment claims.
A. Crossan's Qualified Immunity and Privilege Defenses
The defense of qualified immunity shields government officials performing discretionary functions "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
As a general rule, police officers are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights.
Oliveira v. Mayer,
The matter of whether a right was clearly established at the pertinent time is a question of law. See, e.g., Crawford-El v. Britton,
In ruling that Crossan was entitled to qualified immunity as a matter of law, the district court held, as set forth in Part I.F. above, both that the law governing the lawfulness of Crossan's treatment of Kerman was not clearly established in October 1995 and that Crossan's conduct was objectively reasonable. See Kerman III,
1. The Law-of-the-Case Doctrine and Clearly Established Rights
Under the law-of-the-case doctrine, "`[w]here a case has been decided by an appellate court and remanded, the court to which it is remanded must proceed in accordance with the mandate and such law of the case as was established by the appellate court.'" United States v. Fernandez,
Where the appellate court has decided a question of law, the lower court on remand lacks discretion to decide that question to the contrary. See, e.g., In re Sanford Fork & Tool Co.,
In the prior appeal in the present case, we noted the well-established principle that, in order for a right to be clearly established, " `[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right,'" Kerman II,
In sum, in remanding for trial in Kerman II, we implicitly held that it was sufficiently clear in light of preexisting law that Kerman had a right not to be detained or involuntarily hospitalized by an officer who (on Kerman's version of the facts) did not know, and who patently ignored opportunities to determine, the seriousness of Kerman's condition and whether he was dangerous to himself or others. In light of the Kerman II decision, it was not open to the district court to decide on remand that that right was not clearly established.
2. The Ruling of Objective Reasonableness as a Matter of Law
Nor was it permissible for the district court to rule on remand as a matter of law that Crossan was entitled to qualified immunity on the basis that his conduct was objectively reasonable. Objective reasonableness is a mixed question of law and fact when, as here, material historical facts are in dispute. Thus, as discussed above, the district court's ruling that Crossan's conduct was objectively reasonable as a matter of law was foreclosed by Kerman II unless there was something new in the record on remand in the nature of "an undisputed fact [that] conclusively" required judgment in favor of Crossan, Wakefield v. Northern Telecom, Inc.,
Preliminarily, we note that in granting judgment as a matter of law despite Kerman II's reversal of summary judgment, the district court quoted language in Blissett v. Coughlin,
because qualified immunity is an affirmative defense, it is incumbent upon the defendant to plead, and adequately develop, a qualified immunity defense during pretrial proceedings so that the trial court can determine which claims, if any, may be disposed of by summary judgment, or, at least, which facts material to the qualified immunity defense must be presented to the jury to determine its applicability once the case has gone to trial.
[t]he District Court should have let the jury (a) resolve the[] factual disputes and (b) based on its findings, decide whether it was objectively reasonable for the defendants to believe that they were acting within the bounds of the law when they detained the plaintiffs.
On this appeal, in an effort to bring the present case within the principle that a reversal of summary judgment in favor of a given party forecloses a grant of judgment as a matter of law to that party on remand unless on remand there is new evidence conclusively requiring judgment in that party's favor, Crossan argues that "[t]he facts plaintiff offered at the second trial differed from his prior description of events and conditions" (Crossan brief on appeal at 24) with respect to (a) the condition of Kerman's apartment and (b) the officers' obtaining information from Kerman's doctors. These arguments are not supported by the record.
As to the supposed difference in the evidence with respect to the condition of Kerman's apartment, Crossan argues that
[p]reviously, plaintiff contended that "his apartment was, at worst, untidy." Kerman [II],
(Crossan brief on appeal at 24-25.) Although Crossan is correct that at the second trial Kerman's testimony included these details as to the condition of his apartment, this was not Kerman's entire testimony, and we cannot view his testimony as materially different from his prior description of the apartment as untidy. As set forth in Part I.D. above, Kerman testified at the second trial that his apartment was merely "messy, but not dirty," stating, "I kept the kitchen clean. And I kept the bathroom immaculate ...." (Tr. 505) And any distinction between "untidy" and "messy" is at most a factual shading best left for evaluation by the jury; it surely is not a difference on which hinges the right to judgment as a matter of law.
As to Crossan's contention that the evidence at the second trial showed different facts as to the officers' attempts to obtain information from Kerman's doctors, Crossan states as follows:
[t]he record, as developed at the second trial, reflects that the officers attempted to reach the psychiatrist plaintiff identified as his doctor but that no one answered at the number plaintiff gave. The record also reflects that at plaintiff's request the officers called the number a second time and left a message ([Tr.127-28]). Later plaintiff gave the paramedic a different name and number of someone who plaintiff purported [sic] was his doctor. The paramedic called the number and held a conversation with the alleged doctor. Thereafter, the paramedic held the phone up to the plaintiff so he could speak to the person at the other end. Although, under plaintiff's version of the facts, defendant Crossan hung up the phone while plaintiff was speaking with this second doctor, this allegedly occurred after the trained medical professional conversed with the doctor. The paramedic was apparently satisfied with the information he received as he did not ... call the doctor back ([Tr.133-37]). Under the law existing at the time of the incident, any information the paramedic received can be imputed to defendant Crossan.
(Crossan brief on appeal at 25 (emphases added).) Although the district court appears to have credited an argument such as this, implying that Pontrelli "received" medical "information" from Dr. Malone, see Kerman III,
Moreover, Crossan's suggestion that officer Hume's attempt to call Dr. Brozovsky was not known to this Court at the time of Kerman II is unsupportable. Although that fact was not mentioned in the opinion, it was argued in defendants' brief on that appeal. See Kerman v. City of New York, No. 00-9130, Appellees' Brief dated January 31, 2001,
In sum, the evidence of the officers' efforts — or lack thereof — to obtain information from Kerman's doctors was not significantly different in the second trial. Thus, the law-of-the-case doctrine precluded a ruling by the district court that Crossan's conduct was objectively reasonable as a matter of law.
3. The Court's Factual Findings as to Objective Reasonableness
In concluding that Crossan's conduct was objectively reasonable, the district court made a number of factual statements that were not findings by the jury and that impermissibly took the evidence in the light most favorable to Crossan, rather than, as required, to Kerman as the party in whose favor the jury found on the seizure and imprisonment claims and as the party against whom judgment was sought as a matter of law. See generally Piesco v. Koch,
in most trials, and especially in one where participants are giving their accounts of events occurring rapidly and in a highly charged atmosphere, the jurors [a]re not required to accept the entirety of either side's account, but [a]re free to accept bits of testimony from several witnesses and to make reasonable inferences from whatever testimony they credit[].
Haywood v. Koehler,
For example, the court suggested that Crossan had directly obtained medical information from one of Kerman's doctors, stating that "[t]wo officers testified that they heard Defendant Crossan or another officer on the telephone with a doctor." Kerman III,
The jury surely was not required to credit the officers' testimony suggesting that Crossan spoke to a doctor, and their testimony was wholly insufficient to permit any inference as to the content or substance of any such conversation. The court, in crediting the officers' testimony and intimating that Crossan or another officer obtained medical information by speaking with a doctor on the telephone, plainly did not view the evidence in the light most favorable to Kerman, especially given (a) the inability of Crossan to recall speaking to any doctor, (b) the absence of any evidence that Dr. Brozovsky called the apartment, and (c) the testimony of Dr. Malone that he did not speak to a policeman.
Nor did the district court view the evidence in the light most favorable to Kerman in finding that Kerman "was conducting himself in a manner that was likely to result in serious harm to himself and others." Kerman III,
The court also concluded that Crossan's conduct was reasonable in part because Crossan observed that Kerman was naked. The jury, had it been asked, would not have been compelled to so conclude, given, inter alia, testimony by other officers that when they arrived at the apartment Kerman was wet and wearing a towel (see, e.g., Tr. 382, 270), as well as Crossan's own testimony (a) that he would not have regarded nakedness in and of itself as an indication that Kerman was dangerous to himself or others, and (b) that he did not recall whether he asked Kerman why he was naked.
In addition, the court must have discredited testimony by Kerman when it found that Kerman's apartment "was filthy with feces and urine and stunk," Kerman III,
The district court also linked its finding that Crossan's conduct in sending Kerman to the hospital was objectively reasonable — and indeed was virtually required — to the New York stаtute that provides that "`any ... police officer... may take into custody any person who appears to be mentally ill and is conducting himself in a manner which is likely to result in serious harm to himself or others.'" Kerman III,
Nor can we uphold the district court's dismissal of Kerman's false imprisonment claims on the basis of the state-law provision granting police officers immunity from "damages for injuries alleged to have been sustained by [a] person [taken into custody and transported to a hospital] ... unless it is established that such injuries ... [were] caused by gross negligence." N.Y. Mental Hygiene Law § 9.59. See generally Napolitano v. Flynn,
In sum, we agree with Kerman's contentions that the district court's ruling that Crossan was entitled to qualified immunity as a matter of law was contrary to the law of this case as established in Kerman II. And to the extent that the court's immunity rulings were based on the court's own factual findings that the jury neither made nor would have been compelled to make, the rulings infringed Kerman's Seventh Amendment right to have the facts found by a jury.
4. Crossan's Obligation To Seek the Necessary Jury Findings
Finally, we note that Kerman has argued that Crossan waived his qualified immunity defense by, inter alia, failing to move pursuant to Fed.R.Civ.P. 50(a) at trial for judgment as a matter of law and by failing to submit the necessary fact-specific questions to the jury. The district court concluded that Crossan had preserved his qualified immunity defense by, inter alia, pressing that issue during the jury deliberations at the first trial and moving for judgment as a matter of law prior to jury deliberations at the second trial. Kerman III,
Nonetheless, for the reasons that follow, we agree with the district court that Crossan did not waive his qualified immunity defense by failing to make a Rule 50 motion prior to submission of the case to the jury. But we also agree with Kerman that the defense was effectively waived by Crossan's failure to request that the necessary predicate factual questions be submitted to the jury.
Rule 50(a) provides as follows:
(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.
Fed.R.Civ.P. 50(a) (emphases added). If the court does not grant such a motion during trial, the movant may "renew" the motion within 10 days after the entry of judgment. Fed.R.Civ.P. 50(b)
These provisions normally mean that a party is not allowed to move for judgment as a matter of law after trial without having made such a motion prior to submission of the case to the jury. See, e.g., McCardle v. Haddad,
However, as indicated by the language of the Rule itself, a prerequisite for the granting of a Rule 50 motion is that "there [be] no legally sufficient evidentiary basis for a reasonable jury to find for th[e] party" against whom judgment as a matter of law is sought. Fed.R.Civ.P. 50(a)(1). As discussed in Part II.A.1., the standard for judgment as a matter of law is the same as the standard for summary judgment. Thus, when the court of appeals, on a prior appeal in the same case, has held that the evidence in the record is legally sufficient to prevent summary judgment in favor of a given party, that party is foreclosed from arguing that virtually the same evidence, presented at trial, is not legally sufficient to avoid judgment as a matter of law.
Rule 1 of the Federal Rules of Civil Procedure provides that the Rules "shall be construed and administered to secure just, speedy, and inexpensive determination" of actions. Fed.R.Civ.P. 1. In circumstances such as these, we cannot, consistent with Rule 1, construe Rule 50 to require a pre-deliberations motion for judgment as a matter of law. Such a motion would invite the trial court to commit error, for the motion could not properly be granted in light of the law-of-the-case doctrine; it thus hardly seems just to require that such a motion be made. Further, if the court granted the motion, disregarding the law of the case, a new trial (in this case, Kerman's third trial) would be required — hardly a just, speedy, or inexpensive course. Nor would it be expeditious to require the movant to fashion a conditional pre-deliberations motion for JMOL where there are multiple material factual disputes, for the permutations of possible findings could easily become unwieldy. Here, for example, the disputes pertinent to Crossan's qualified immunity defense included (1) whether Crossan hung up on Dr. Malone, bypassing the opportunity to get a medical opinion on Kerman's condition (2) whether Crossan talked to any doctor, (3) whether Pontrelli had any conversation with Dr. Malone about Kerman's condition, (4) whether Kerman refused to respond to questions, (5) whether Kerman's emotional state exhibited dangerousness, and (6) whether the condition of his apartment suggested dangerousness. A conditional Rule 50 motion hypothesizing favorable (to Crossan) jury answers to one or more of these questions would have entailed analysis of more than a score of possible combinations.
We conclude that when the law-of-the-case doctrine precludes the granting of a motion for judgment as a matter of law on a given issue prior to submission of the case to the jury because the appellate court has held, on substantially the same evidentiary record, that as to that issue there are questions of fact that must be resolved by the jury, it would be inappropriate to conclude that a party's failure to make such a motion prior to submission of the case to the jury constituted a waiver of its right to request judgment in its favor after the jury has returned a verdict and has resolved the pertinent factual disputes in its favor. Here, where the record at trial was virtually the same as the record before this Court in Kerman II, see Part II.A.2. above, judgment as a matter of law prior to jury findings of fact was precluded by our decision in Kerman II, and we thus reject the contention that Crossan waived his defense by failing to make a motion for the forbidden relief.
This conclusion does not, however, mean that there was not a waiver of a different sort, for Crossan, who had the burden of proving his defense of qualified immunity, failed to ask that the jury be given interrogatories that were sufficiently specific to permit it to resolve the factual disputes that were material to his defense. Although, as discussed in Part II.A. above, the ultimate question of whether a defendant official is entitled to qualified immunity is one for the court, when the relevant factual disputes have been resolved by a jury the court must base its legal ruling on the facts as found by the jury. In Kerman II we observed that "a finding that the officers violated the Constitution does not necessarily prevent the application of qualified immunity,"
At the new trial, however, no precise questions as to the actual events and circumstances were submitted to the jury. As described in Part I.E. above, Crossan pursued his qualified immunity defense simply by requesting that the jury be asked to make a finding as to whether his decision to detain and hospitalize Kerman was supported by probable cause. The district court likewise, in colloquy with counsel, identified the only factual question to be put to the jury on Crossan's qualified immunity defense as whether Crossan had "[p]robable cause to send [Kerman] to the hospital." (Tr. 465.) Accordingly, the court gave no other instruction with respect to qualified immunity.
The jury was asked, in accordance with Fed.R.Civ.P. 49(b), to answer the 17 interrogatories described in Part I.E. above and to return a "general verdict" (Tr. 765; see also id. at 729, 734). Those interrogatories, which were "approved by both sides['] counsel," Kerman III,
Although subpart (a) of Rule 49 permits the trial court, in some circumstances, to supply an omitted finding that would complete a jury's verdict, see, e.g., 9 Moore's Federal Practice § 49.11[4], at 49-32 (3d ed.2003), Rule 49(a) does not apply where the jury, in accordance with Rule 49(b), has returned a general verdict, making a finding as to ultimate liability, see, e.g., Jarvis v. Ford Motor Co.,
In the circumstances of this litigation, if the requisite fact questions had been submitted to the jury, and if the jury had answered them favorably to Crossan, the district court would then have had the authority, despite the absence of a Rule 50 motion, to make the ultimate legal determination of whether Crossan was entitled to qualified immunity on the Fourth Amendment claim, or whether there was privilege on the state-law claims, based on the jury's factual findings. To the extent that a particular finding of fact was essential to an affirmative defense, however, it was incumbent on Crossan to request that the jury be asked the pertinent question. Not having made such a request, Crossan was not entitled to have the court, in lieu of the jury, make the finding. The material factual issues as to Crossan's defenses not having been resolved by the jury, we reverse the district court's ruling that Crossan's decision to detain and hospitalize Kerman was protected by privilege or qualified immunity.
B. Kerman's Entitlement to Correction of the Judgment
The April 23, 2002 judgment entered by the district court after the jury returned its verdict dismissed all of Kerman's claims. The court ruled in Kerman III that Kerman's Rule 60 motion, seeking correction of the judgment to reflect that he prevailed on his Fourth Amendment claim for unlawful seizure and his state-law claims for false imprisonment, had merit despite a possible inconsistency in the jury's answers to the interrogatories. We agree.
With respect to those claims, the jury had been instructed that it should not find Crossan liable for Kerman's injuries unless it found that Crossan acted without probable cause and proximately caused the injuries to which Kerman testified. The jury found that Crossan had detained Kerman and ordered him taken to the hospital without probable cause but that Kerman had not proven that that unlawful conduct was the proximate cause of his claimed injuries. The jury nonetheless concluded that Kerman should be awarded nominal damages. Because the jury had been instructed that it should not reaсh the issue of damages unless it found that Kerman had established Crossan's liability, there appeared to be some tension between its finding that Kerman had not shown proximate cause and its finding that he was entitled to nominal damages. Where there appears to be an inconsistency between the jury's interrogatory answers, "[i]t is the duty of the district court to reconcile the jury's general verdict and its interrogatory responses if reasonable reconciliation is possible." 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2513, at 229 (2d ed.1995). Such a reconciliation may take into account a perhaps-flawed aspect of the instructions that the jury may have followed. See, e.g., Abou-Khadra v. Mahshie,
Applying this principle, the district court properly reconciled any apparent inconsistency between the jury's finding that Kerman was entitled to nominal damages and its finding that Crossan's conduct did not proximately cause Kerman injury. The court had instructed the jury on the need to find proximate cause only in the context of the court's discussion of compensatory damages (see Tr. 759-60), and in that category of damages the court had referred only to "medical expenses," "physical pain and suffering," and "emotional and mental anguish" (Tr. 760-61). As to nominal damages, in contrast, the court instructed that the jury could make such an award if it found that, other than the deprivation of a legal right, Kerman had "suffered no actual damages" (Tr. 761), presumably referring to the medical expenses, pain and suffering, and emotional distress for which the court had instructed that Kerman might recover compensatory damages.
In reconciling the jury's answers, the court reasoned that the jury had found a violation of Kerman's rights but simply had "found that ... Plaintiff had suffered no actual damages"; and, citing Carey v. Piphus,
C. Kerman's Entitlement to a New Trial on Damages
In his posttrial Rule 59 motion, Kerman contended that in light of the fact that he had рrevailed on the unlawful seizure and false imprisonment claims, he was entitled to an award of more than nominal damages. He moved for a new trial on damages, contending that the jury's verdict was against the weight of the evidence. He also argued that given the undisputed evidence that he had been held in custody for some 24 hours, he was entitled to at least compensatory damages as a matter of law because "[t]he right involved here — to be free from unlawful seizures — is the right to liberty.... The jury in this case found that defendant Crossan violated Kerman's right to liberty." (Plaintiff's Memorandum in Support of Motion to Correct the Judgment and for a New Trial on the Issue of Damages at 3-4.) Kerman argued that the denial of any compensatory damages constituted "a serious error or miscarriage of justice." (Id. at 3.) He also argued that he had proven substantial injuries including pain, suffering, posttraumatic stress disorder, and deterioration of his preexisting psychological condition. (See, e.g., id. at 4, 7; Declaration of Gregory Abbey (Kerman's attorney) dated April 30, 2002.)
The district court denied Kerman's Rule 59 motion on various grounds. The court stated that the jury found that Kerman had not suffered actual damage as a result of Crossan's actions, see, e.g., Kerman III,
On appeal, Kerman contends (1) that the jury's denial of compensatory damages was against the weight of the evidence, and (2) that the court misapplied the pertinent legal principles. We bypass Kerman's first contention because a district court's denial of a new trial motion made on the ground that the jury's verdict was against the weight of the evidence is not reviewable on appeal, see, e.g., Robinson v. Cattaraugus County,
[W]e may ... review the [denial of a new-trial motion] to the extent that it rejected the related contention that the undisputed evidence entitled [the plaintiff] to a compensatory award as a matter of law. See, e.g., Wheatley v. Beetar,
Haywood v. Koehler,
In addressing Kerman's contention that he should have a new trial on damages because he was entitled to compensation as a matter of law, we view the record in the light most favorable to Crossan as the party against whom a new trial is sought. See, e.g., Amato v. City of Saratoga Springs,
1. Kerman's Claims of Physical, Mental, and Emotional Injury
A finding that the plaintiff has been deprived of a constitutional right does not automatically entitle him to a substantial award of damages. "The cardinal principle of damages in Anglo-American law," which applies to actions brought under § 1983, "is that of compensation for the injury caused to plaintiff by defendant's breach of duty." Carey v. Piphus,
Similarly, when a jury has found that the plaintiff proved a defendant used excessive force against him in violation of his rights under the Fourth or Fifth Amendment, a verdict that the plaintiff is not entitled to compensatory damages is not necessarily impermissible. A jury could reasonably find that only nominal damages are appropriate where, for example, a plaintiff's testimony as to his injuries lacks objective support or credibility, or where both justified force and unjustified force were used, either of which could have caused his injuries, or where some of the plaintiff's injuries could have been caused by a codefendant who was not found to have used excessive force. See, e.g., Amato v. City of Saratoga Springs,
In light of these principles, we cannot conclude that Kerman is entitled to a new trial on damages for most of his claimed injuries. The injuries to whiсh he testified were relatively minor physical injuries (pain from being transported with his hands cuffed under him and subsequent soreness in his back and neck) and emotional or psychological injuries. Taking the evidence in the light most favorable to Crossan, as the party against whom a new trial is sought, we see no valid reason why the jury could not have rejected these claims of injury. The jury could, for example, have found that any physical pain Kerman suffered was de minimis in light of both the hospital record that described him as arriving at Bellevue "in no apparent physical distress" (Trial Exhibit 1) and Kerman's own trial testimony that, after leaving Bellevue, he did not seek medical treatment for any physical injuries (Tr. 495, 510-12).
As to whether Kerman experienced mental suffering or psychological injury, the jury was not required to credit Kerman's subjective representations or the testimony of Kerman's brother, who, like Kerman, was an interested witness. Further, although Kerman presented a psychiatrist's expert opinion that he suffered posttraumatic stress disorder as a result of "the incident with the police" (Tr. 308), that opinion was not sufficiently specific to link that disorder to conduct for which Crossan could be held liable. The "incident" had begun with the officers' forcible entry into Kerman's apartment and immediate seizure of Kerman in preparation for their search for a gun. But at the second trial, only the postsearch stage of the event was at issue, as we had held in Kerman II that Crossan had immunity with respect to the entry and initial seizure. See
Accordingly, we cannot conclude that Kerman was entitled as a matter of law to compensatory damages on the basis of his claims of physical pain, medical expenses, emotional suffering, and psychological injuries.
2. Kerman's Claim of Loss of Liberty
In contrast, where the jury has found a constitutional violation and there is no genuine dispute that the violatiоn resulted in some injury to the plaintiff, the plaintiff is entitled to an award of compensatory damages as a matter of law. See, e.g., Atkins v. City of New York,
Similarly, where the plaintiff was indisputably deprived of his liberty, and the conduct of the defendant responsible for the deprivation was found to be unlawful, we have held that the plaintiff is entitled to compensatory, not merely nominal, damages. See Raysor v. Port Authority of New York and New Jersey,
New York cases uphold awards of up to $10,000 for eve[n] short periods of confinement without proof of actual damages. See, e.g., Hallenbeck v. City of Albany,
Raysor,
The admonition not to award "speculative damages" was, of course, correct, as was the court's instruction that Raysor had "the burden of proof with respect to the nature and extent of his injuries, and with respect to his resulting losses." But the court should have made it clear to the jury that it could award monetary damages — the amount necessarily arbitrary and unprovable — for the intangibles which we have referred to above.
Id. (emphasis added).
Raysor is consistent with traditional common-law principles governing entitlement to damages for the tort of false imprisonment. That tort "is complete with even a brief restraint of the plaintiff's freedom"; "it is not necessary that any damage result from it other than the confinement itself." Prosser & Keeton, The Law of Torts § 11, at 48 (5th ed. 1984) ("Prosser & Keeton"). The compensatory damages that may be awarded for false imprisonment fall into two categories: general damages and special damages. See, e.g., McCormick, Handbook on the Law of Damages § 107, at 375-77 (1935) ("McCormick on Damages"). General damage is a "harm of a sort inseparable from [the unlawful] restraint." Id. at 375. For "false imprisonment, upon pleading and proving merely the unlawful interference with his liberty, the plaintiff is entitled to `general' damages for loss of time and humiliation or mental suffering." Id.; see, e.g., Prosser & Keeton § 11, at 48 ("The plaintiff is entitled to compensation for loss of time, for physical discomfort or inconvenience, and for any resulting physical illness or injury to health. Since the injury is in large part a mental one, the plaintiff is entitled to damages for mental suffering, humiliation, and the like." (footnotes omitted)). Items of "special damage" commonly include "physical discomfort, shock, or injury to health," "loss of ... employment," and "injury to the plaintiff's reputation or credit," and must be specifically pleaded and proven. McCormick on Damages at 376. In contrast, "`[g]eneral' damage ... need not be specifically proved-it may be inferred from the circumstances of the arrest or imprisonment" and "would include at least the value of the time lost by the plaintiff during the period of detention." Id.
The damages recoverable for loss of liberty for the period spent in a wrongful confinement are separable from damages recoverable for such injuries as physical harm, embarrassment, or emotional suffering; even absent such other injuries, an award of several thousand dollars may be appropriate simply for several hours' loss of liberty. See, e.g., Hallenbeck v. City of Albany,
In the present case, the facts with regard to Kerman's actual loss of liberty were largely uncontroverted. There was no dispute that Kerman was kept in handcuffs after the officers completed their search for a gun and that he was taken to Bellevue Hospital where he remained overnight; there was no dispute that Crossan was in charge of the group of officers who kept Kerman in custody; there was no dispute that it was Crossan who ordered that Kerman be taken to the hospital (see, e.g., Tr. 524 (Crossan admits that he "made the decision to remove [Kerman] from his home and send him to the hospital"); Tr. 750 (instructing the jury that "[i]t is not disputed by the parties that the defendant Crossan decided that plaintiff would be brought to the hospital")); and there was no dispute that Kerman did not go to the hospital willingly.
The jury, however, was not instructed that Kerman was entitled to compensatory damages for his loss of liberty. This may have been attributable in part to the district court's view, stated in its posttrial discussion of the jury's failure to return a verdict for more than nominal damages, that Crossan could not be held responsible for any loss of liberty after Kerman's arrival at Bellevue. The court stated, inter alia, that Kerman's detention in the hospital was not attributable to Crossan but rather was based on the independent decision of the Bellevue doctors. See Kerman III,
Although foreseeability is normally an issue of fact, see, e.g., Warner v. Orange County Department of Probation,
The district court also found that Crossan was not responsible for Kerman's remaining at Bellevue overnight because it found that Kerman "consent[ed]" to remaining there overnight. Kerman III,
The district court also hypothesized that the jury might "have rationally concluded that, although Defendant Crossan had not proved that he had adequate grounds to cause Plaintiff to be brought to the hospital, that decision was in Plaintiff's best interests and did not result in injury to him." Kerman III,
Instead, the record suggests to us that the jury's failure to award Kerman compensatory damages resulted from the way in which the jury was instructed on the issue of damages. In describing injury and compensatory damages, the court focused solely on Kerman's claims of medical expenses, physical pain, and mental or emotional suffering. (See, e.g., Tr. 760-61; see also id. at 760 ("right to recover damages is not limited by the fact that his injury resulted from an aggravation of a preexisting condition").) The court's instructions gave no indication that if the jury found that Crossan detained Kerman and sent him to the hospital without probable cause, which necessarily curtailed Kerman's liberty, Kerman was, independently of his claims of physical, mental, emotional, or economic injury, entitled to be compensated for that loss of liberty. The jury should have been so instructed.
Although Kerman argued after trial that he was entitled to compensatory damages for his loss of liberty, we see in the record no indication that he objected at trial to the court's failure to give the jury such an instruction. Absent an objection prior to the submission of the case to the jury, a claimed error in instructions is not preserved for normal appellate review, see Fed.R.Civ.P. 51, and, in a civil case, is reviewable only for fundamental error. "To qualify as a fundamental error a jury charge must have deprived the jury of adequate legal guidance to reach a rational decision." De Falco v. Bernas,
In Raysor, although we did not discuss this principle, we treated the trial court's failure to instruct the jury as to the plaintiff's entitlement to compensatory damages for loss of liberty as an error that was fundamental. The Raysor panel noted that Raysor had been incarcerated "for several hours — he said five and Officer Simpson said three and one-half."
The official appellees in Raysor argued that any such instructional error was waived because Raysor had not objected at trial to the court's failure to give that instruction. (See brief on appeal of defendant Port Authority, et al., at 16-17 ("[A]ppellant cannot complain about any alleged errors in the District Court's charge on the issue of damages, since he not only failed to address the issue of damages in his proposed jury instructions, but also failed to specifically call such alleged errors to the trial court's attention where they could have easily been corrected.").) Despite Raysor's failure to preserve the instructional error for normal appellate review, we concluded that the court's failure to instruct the jury that Raysor was entitled to compensation for a loss that was inseparable from the restraint itself was sufficiently serious to require a new trial before a jury properly instructed that Raysor could be compensated for loss of his liberty.
In the present case, where there was no dispute that Crossan caused the postsearch curtailment of Kerman's liberty, and where that loss of liberty indisputably lasted at least 10 hours without any evidence of Kerman's consent, the trial court should have informed the jury that if it found Crossan acted without probable cause it should award Kerman compensation for the loss of his liberty. Given that a loss of liberty is inherent in an unlawful confinement, the failure to give that instruction deprived the jury of the legal guidance needed for a rational decision and thus constituted fundamental error.
The dissent disagrees with our view that it was fundamental error for the trial court to fail to instruct the jury that, upon finding that Crossan unlawfully deprived Kerman of his liberty, the jury could award Kerman compensatory damages for that loss of liberty. The dissent suggests principally that Kerman's failure to request such an instruction was strategic (see Dissenting Opinion post at 134, 136), that there can be no compensatory damages for a loss of liberty unless that injury is reflected in emotional or economic harm (see id. at 134), and that the district court's "failure to instruct the jury that it could award [Kerman] compensatory damages for a loss of liberty in the abstract, without regard to any injury compensable at common law" was not error (id. at 137 (citing Memphis Community School District v. Stachura,
We see no parallel between Kerman's claims in the present case and the abstract concepts that were at issue in Stachura. In Stachura, the Court dealt with claims for violations of the plaintiff's rights to procedural due process and academic freedom, and the trial court had instructed the jury that it could award damages for "the abstract `value' or `importance' of constitutional rights,"
Further, the Supreme Court in Stachura, in disapproving the instructions that would have allowed an award based on the abstract societal value of constitutional protections, expressly distinguished that impermissible abstraction from the theory that is pertinent here, to wit, the traditionally permissible concept of "presumed damages." The Court noted, citing Carey v. Piphus,
The present case does not involve either procedural due process or an attempt to vindicate an abstract societal interest. Rather, it involves an anything-but-abstract physical detention. And although a given person's loss of timе may be difficult to evaluate in terms of dollars, his loss of liberty is not just "virtually certain" to occur; it is inseparable from the detention itself.
Accordingly, the availability of compensatory damages for time lost as a result of an unlawful detention was recognized at common law. We disagree with the dissent's view that the common-law concept of loss of time encompasses only loss of economic opportunity (see Dissenting Opinion post at 136-37). The only cases cited in support of that view are not false-imprisonment cases but rather are cases in which the plaintiffs sought compensation for earnings lost due to injuries suffered as a result of the defendants' negligence. See Southwestern Brewery & Ice Co. v. Schmidt,
The traditional availability of damages for loss of time as a result of false imprisonment has been recognized by the New York courts. As indicated above, the New York Appellate Division decisions in Hallenbeck v. City of Albany and Woodard v. City of Albany sanctioned false-imprisonment awards of $10,000 for a three-hour detention and $7,500 for a five-hour detention, respectively. Those opinions contained no indication whatever that the plaintiff had shown any economic loss. Further, the court in each case noted that "there [wa]s no indication that [t]he [plaintiff] incurred any substantial physical or mental" injury or suffering, Hallenbeck v. City of Albany,
Thus, although the dissent states that "[a] loss of liberty, by itself, does not warrant a compensatory damages award any more than any other constitutional violation" (Dissenting Opinion post at 135), and that "to recover compensatory damages for a loss of liberty in a § 1983 action, a plaintiff must show that he suffered an injury compensable under the common law of torts" (Dissenting Opinion post at 135), the New York and hombook authorities reveal that the loss of liberty inherent in an unlawful detention is an injury compensable under the common law of torts.
Nor can we view Kerman's failure to request an instruction that he was entitled to compensation for loss of time resulting from his detention as strategic, rather than as merely an oversight, given that such a request would not have been the least bit inconsistent with his claims of physical, mental, and emotional injury.
Finally, we note that the damage done by the court's failure to instruct the jury that it could award Kerman compensatory damages for the loss of liberty inherent in an unlawful detention may well have been compounded by the court's erroneous instruction on nominal damages. The court instructed that "when the plaintiff has been deprived of a right .... as a result of any of the defendant's conduct," but no "actual" damages have been suffered, "[n]ominal damages may be awarded," and "if you find... the deprivation of a legal right" but no other injury, "you may award, if you so choose, nominal damages not to exceed $1." (Tr. 761 (emphases added).) It is established, however, that "[i]f a jury finds that a constitutional violation has been proven but that the plaintiff has not shown injury sufficient to warrant an award of compensatory damages,.... it is plain error to instruct the jury merely that, having found a violation, it `may' [rather than must] award nominal damages." Robinson v. Cattaraugus County,
Finding no significant difference between the present case and Raysor, in which we remanded for a new trial despite the plaintiff's failure to ask the district court to instruct the jury that it could award damages for his loss of liberty, we conclude that the failure in this case to give the jury any indication that it could consider awarding compensatory damages for an injury that was inherent in a confinement found to be unlawful was a fundamental error. Kerman remains entitled to have a jury assess the compensation he should be awarded on his Fourth Amendment claim against Crossan and his state-law claims against Crossan and the City for his loss of liberty for the time spent in the postsearch confinement without his consent.
3. The Scope of the New Trial
Where "it is clear from the undisputed evidence that a plaintiff's injuries were caused by a defendant's [unlawful conduct], the jury's failure to award some compensatory damages will be set aside and a new trial ordered." Haywood v. Koehler,
In the present case, the jury was given interrogatories the answers to which revealed its findings on discrete questions of liability and damages. The proper instructions to the jury on the liability issues were clear, and we see no indication that the jury's finding as to the lack of probable cause was a compromise verdict. We conclude that the liability issues were fairly tried and resolved. Accordingly, in light of the jury's finding that Crossan acted without probable cause, Kerman was entitled as a matter of law to an award of compensatory damages for so much of his postsearch loss of liberty as was attributable to Crossan, and it is appropriate to limit the new trial — the third trial in this case — to the amount of compensatory damages that Kerman should receive for his loss of liberty.
We note that if Crossan had asked the district court to present to the jury the questions that needed to be answered in order to permit him to prevail on his affirmative defenses, and if the court had refused to do so, we would order a new trial encomрassing also the issues of privilege and qualified immunity. However, he made no request that the requisite findings be made by the jury, despite the explicit guidance given in Kerman II that such findings by the jury were necessary. Accordingly, we see no just reason to order a new trial with respect to his defenses.
On remand, the jury should be informed that it has been established that Crossan's orders for Kerman's detention and hospitalization after completion of the officers' search for a gun violated Kerman's Fourth Amendment right to be free from unlawful seizure and his state-law right to be free from false imprisonment. The jury should be properly instructed on the matter of foreseeability; and it should be asked to determine, based on the evidence admitted at the new trial, the duration of Kerman's postsearch detention and hospitalization attributable to Crossan and the amount of damages that will compensate Kerman for that loss of liberty. Placing a value on Kerman's loss of liberty — necessarily a subjective exercise, see, Raysor,
Finally, we note that Kerman states that Judge Patterson indicated that any renewed proceedings in the district court would be held before a different judge, and Kerman states that he has no objection to a reassignment. This Court sees no basis whatever for instructing that the matter be remanded to a different judge of the district court, and we leave any such administrative decision to that court.
CONCLUSION
We have considered all of Crossan's contentions on this appeal and have found them to be without merit. The order of the district court granting judgment as a matter of law to Crossan is reversed. The April 23, 2002 judgment dismissing the complaint is vacated to the extent that it dismissed Kerman's Fourth Amendment claim against Crossan and the false imprisonment claims against Crossan and the City following the officers' completion of their search for a gun. The matter is remanded for a new trial on the issue of the amount of compensatory damages to be awarded to Kerman for loss of liberty.
Costs to plaintiff.
RAGGI, Circuit Judge, concurring in part and dissenting in part.
I concur in the majority opinion to the extent it reverses the grant of judgment as a matter of law to Crossan. I respectfully dissent, however, from Part III.C.2, which concludes that the district court committed fundamental error in failing to charge the jury that it could award Kerman compensatory damages for lost liberty based on the loss of his time whilе he was unlawfully confined. See Maj. Op. at 129, 132 ("[T]he trial court should have informed the jury that if it found Crossan acted without probable cause it should award Kerman compensation for the loss of his liberty.... Kerman remains entitled to have a jury assess the compensation he should be awarded on his Fourth Amendment claim against Crossan and his state-law claims against Crossan and the City for his loss of the time spent in the postsearch confinement without his consent.").
As this court recently reiterated, the standard for establishing that a civil jury charge is fundamentally erroneous under Federal Rule of Civil Procedure 51 is stern. See SCS Communications, Inc. v. Herrick Co.,
As the majority opinion explains, an individual subject to false imprisonment may be compensated not only for tangible injuries, such as out-of-pocket expenses and lost wages, but also for intangible injuries, such as loss of time, physical discomfort or inconvenience, mental suffering, and humiliation. See Maj. Op. at 125; see also Raysor v. Port Auth. of New York & New Jersey,
Relying on Raysor, the majority concludes that in this case the district court committed a similar fundamental error by failing sua sponte to charge the jury that it could compensate Kerman for the intangible injury of lost time. I am not convinced. In Raysor, the error was a total failure to instruct the jury that intangible injuries were compensable for false imprisonment. By contrast, in this case the district court did not overlook Kerman's entitlement to compensation for intangible injuries. To the contrary, it specifically instructed the jury that it could award damages for any "emotional mental anguish" that Kerman had sustained as a result of his false imprisonment. Trial Tr. at 760. Because the intangible injuries caused by false imprisonment are "large[ly] ... mental," Prosser & Keeton § 11, at 48, this charge afforded the jury considerable latitude in making a compensatory award. Indeed, the charge comported with Kerman's trial strategy. In arguing for damages in summation, Kerman's counsel focused exclusively on the mental humiliation his client had suffered as a result of the unlawful detention, repeatedly emphasizing the extent of his embarrassment, particularly in being removed from his home in a restraint bag. See Trial Tr. at 714-17, 721-23. Nowhere in summation did counsel allude to any loss-of-time injuries sustained by Kerman. Thus, the error in this case is not, as in Raysor, the сourt's failure to instruct the jury that it could compensate plaintiff for intangible injuries. Nor is it a failure to instruct the jury that it could compensate plaintiff for the specific intangible injuries argued by plaintiff in summation. Instead, the identified charging error is the court's failure to instruct the jury that it could compensate plaintiff for a type of intangible injury never argued by plaintiff: the loss of time.
In concluding that this error is fundamental, the majority appears to equate "loss of time" with "loss of liberty," and to hold that any unlawful detention that spans several hours necessarily involves lost time that should receive a compensatory award. See Maj. Op. at 129. I must disagree.
Preliminarily, I do not understand "lost time" and "lost liberty" to be identical concepts. "Loss of liberty" describes the Fourth Amendment violation that occurs when a person is confined against his will by the government; it is the constitutional tort. "Loss of time," on the other hand, is simply one of a variety of compensable injuries, tangible and intangible, that can result from a loss of liberty.1 A loss of liberty, by itself, does not warrant a compensatory damages award any more than any other constitutional violation. This is not to ignore the seriousness of constitutional violations. The law vindicates such violations through awards of nominal damages, even absent proof of actual injury. See Memphis Cmty. Sch. Dist. v. Stachura,
"Loss of time" is an injury that has long been cognizable at common law. Its focus, however, is not on the general loss of liberty, but on a discrete form of economic harm: plaintiff's inability to work. See 22 Am.Jur.2d Damages §§ 138, 139, 158 (2003); 25 C.J.S. Damages § 54, at 391-92 (2002); 36 N.Y. Jur.2d Damages § 68, at 118-19 (1984); see also Southwestern Brewery & Ice Co. v. Schmidt,
Kerman's decision not to seek damages for loss of time, but to focus, instead, on obtaining a compensatory award based on the pain and mental anguish experienced during his detention cannot be deemed strategically unreasonable. Kerman's somewhat-fragile mental state on the date of the arrest would have made it difficult to assert that his earning capacity at the time was particularly high. On the other hand, counsel could, and did, suggest that Kerman's vulnerability made his mental anguish particularly acute. Where counsel makes a strategic decision to argue one type of intangible injury and not another, I do not think the district court commits fundamental error by charging only the intangible injury theory pursued.
In sum, I do not think the integrity of Kerman's trial was compromised by the district court's failure to charge loss of time, a theory of economic injury not pursued by plaintiff. Nor, in light of Memphis Community School District v. Stachura, do I think the trial's integrity can be questioned based on the court's failure to instruct the jury that it could award compensatory damages for a loss of liberty in the abstract, without regard to any injury compensable at common law. The district court having properly charged the jury that it could compensate Kerman for mental anguish and suffering — a form of intangible injury recognized at common law, long associated with unlawful confinement, and exclusively pursued by plaintiff — I cannot conclude that there was a fundamental error in the charge warranting a new trial. Accordingly, on this point, I respectfully dissent.
Notes:
Notes
One commentator catalogues these injuries to include loss of time, physical discomfort or inconvenience, physical injury or injury to health, mental suffering, humiliation, business loss, harm to reputation or credit, loss of family company, as well as any special damages unique to the particular plaintiff's caseSee Prosser & Keeton § 11, at 48. Another lists mental anguish or suffering, shame and humiliation, ridicule and scorn, moral and mental degradation, onerous and lengthy interrogation, indignity and disgrace, damage to reputation, interruption to or loss of business, loss of earnings or credit, loss of or damage to property, physical injury, including medical expenses, the loss of family company, disturbance of one's normal life, as well as legal and other expenses associated with securing release, with no distinct mention of "lost time." See 59 N.Y. Jur.2d False Imprisonment and Malicious Prosecution § 147, at 406-08; see also N.Y. Pattern Jury Instructions 3.5 Commentary at 49 (citing cases holding that plaintiffs who suffer false imprisonment may recover compensatory damages for mental anguish, shame and humiliation, injury to reputation, physical suffering or bodily injuries, loss of earnings or business, and medical and legal expenses).
At least one district court in this circuit appears to have used "deprivation of liberty" in charging a jury to describe the intangible injuries to a person's dignity that could result from false imprisonment in order to distinguish those injuries from the pain and suffering attributable to diagnosed physical and mental injuries. See Gardner v. Federated Dep't Stores, Inc.,
I do not read cases such asHallenbeck v. City of Albany,
Although the majority asserts that lost time encompasses injuries that go beyond the economic and the psychic, it does not identify what these are or how a district court should instruct a jury to distinguish among these injuries to ensure reasonable general damages awards
I expect it will be a rare case in which a jury decides not to award any compensatory damages for mental anguish and suffering to a plaintiff who has been detained for more than a trivial amount of time in violation of the Fourth Amendment. Nevertheless, for the reasons stated by the majority, I agree that we must defer to the jury's decision not to award Kerman any such damages