Whitfield v. Melendez-Rivera

United States Court of Appeals
For the First Circuit

No. 04-1217

JUSTIN LEE WHITFIELD; TERRY WHITFIELD; GAIL WHITFIELD,

Plaintiffs, Appellees,

v.

ANIBAL MELÉNDEZ-RIVERA; ISMAEL ÁLVAREZ-MONGE;
MARIA L. LEBRÓN-RAMOS,

Defendants, Appellants,

MUNICIPALITY OF FAJARDO; WILLIAM MANGOMÉ-ROLDÁN

Defendants.

No. 04-1218

JUSTIN LEE WHITFIELD; TERRY WHITFIELD; GAIL WHITFIELD,

Plaintiffs, Appellees,

v.

MUNICIPALITY OF FAJARDO

Defendant, Appellant,

ANIBAL MELÉNDEZ-RIVERA; ISMAEL ÁLVAREZ-MONGE;
MARIA L. LEBRÓN-RAMOS; WILLIAM MANGOMÉ-ROLDÁN

Defendants.
No. 04-1219

JUSTIN LEE WHITFIELD; TERRY WHITFIELD; GAIL WHITFIELD,

Plaintiffs, Appellees,

v.

MUNICIPALITY OF FAJARDO; ANIBAL MELÉNDEZ-RIVERA;
ISMAEL ÁLVAREZ-MONGE; MARIA L. LEBRÓN-RAMOS

Defendants,

WILLIAM MANGOMÉ-ROLDÁN,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.

Gael Mahony with whom Stephen S. Young, Holland & Knight, LLP,
Etienne Totti Del Toro, and Totti & Rodriguez Diaz, were on brief,
for appellant, Municipality of Fajardo.
Eileen Landron Guardiola, with whom William Vázquez Irizarry,
Secretary of Justice, Ivonne Palerm, Deputy Secretary of Justice In
Charge of Litigation, Eduardo Vera Ramírez and Landrón & Vera, LLP,
were on brief, for appellants, Anibal Meléndez-Rivera, Ismael
Álvarez-Monge and Maria L. Lebrón-Ramos.
Tessie M. Leal-Garabis, with whom Gary H. Montilla, and
Quiñones & Sánchez, P.S.C., were on brief, for appellant, William
Mangomé-Roldán.
John F. Nevares with whom John F. Nevares and Associates
P.S.C., Camilo K. Salas III, Karen M. Fontana, and Niles, Salas,
Bourque & Fontana, L.C., were on brief for appellees.

December 6, 2005
 HOWARD, Circuit Judge. Justin Whitfield was shot twice

in the left leg by two municipal police officers as he retreated

from the scene of an apparent arson at a parking garage in Fajardo,

Puerto Rico. Alleging that the officers had employed excessive

force, and that the mayor and the police commissioner of the city

had failed to adopt and implement regulations and training programs

instructing local police on the proper use of deadly force,

Whitfield and his parents brought suit under, inter alia, 42 U.S.C.

§ 1983. Whitfield additionally brought suit against the city,

seeking to hold it liable under a Monell theory. See Monell v.

Dep't of Social Services, 436 U.S. 658 (1978). The defendants now

appeal the jury verdict and the over $5 million dollar compensatory

and punitive damage awards. We affirm in part, reverse in part,

and remand.

I.

We state the facts in the light most favorable to the

jury verdict. See Torres-Rivera v. O'Neill-Cancel, 406 F.3d 43, 45

(1st Cir. 2005). In the pre-dawn hours of December 9, 2000, Justin

Whitfield, an active duty serviceman in the United States Navy

stationed in Puerto Rico, gave a ride to a friend and fellow Navy

enlistee, John Kawika. Under the pretense of showing Whitfield

some antique cars, Kawika instructed Whitfield to drive to a

municipal parking garage in downtown Fajardo. Once they arrived,

Kawika told Whitfield he intended to light a car on fire. Kawika

-3-
proceeded to climb the exterior wall of the garage and Whitfield

followed. As Whitfield looked on, Kawika set fire to a convertible

on the third level of the garage.

Two patrolling Fajardo police officers, Officer William

Mangomé-Roldán, and his immediate superior, Sergeant Maria Lebrón-

Ramos, observed Kawika and Whitfield scaling the exterior garage

wall. The officers entered the building to investigate. Upon

reaching the third level, Mangomé and Lebrón found three cars on

fire. The officers saw two people at the far end of the garage and

ordered them to stop. Ignoring these commands, Kawika jumped from

the third level of the garage to the street below and ran.

Whitfield followed soon thereafter.

Whitfield and the officers present diverging stories of

what happened next. According to Whitfield, after dropping 20 feet

from the garage, he picked himself up and started running toward

his car, which was parked down the street. The street was

illuminated by street lights. Before he got very far he “felt a

force from behind” that knocked him to the ground. Not realizing

he had been shot, Whitfield got up and continued to run. When he

noticed that his left foot was pointing toward his right foot, he

began to hop on his right leg. He was then knocked to the ground

a second time. At this point, realizing that he had been shot,

Whitfield remained still and waited for the police. Whitfield

-4-
denied that he had a weapon or any other object in his hands at any

time during the course of these events.

Lebrón and Mangomé testified that they split up when they

entered the garage. Lebrón arrived first at the scene of the arson

and observed Kawika jump off the ledge. She then noticed Whitfield

standing nearby with his back to her. She testified that, as she

moved to within 20 feet of him, Whitfield turned his head toward

her and she saw that he held a metal object with both hands.

Despite their close proximity, Lebrón testified that she did not

seek cover because she did not fear for her life. She then watched

as Whitfield jumped down to the street below. When Mangomé

arrived, Whitfield was already in the process of jumping. Mangomé

did not observe a metal object in Whitfield's hands at that time.

Moving to the ledge from which Whitfield had jumped,

Lebrón and Mangomé spotted Whitfield on the street below running

away from the garage. Lebrón yelled “alto policia” (stop police).

Both Lebrón and Mangomé testified that, at that moment, they saw

Whitfield turn toward them holding a metal object in his hands.

Fearing that he would shoot at them, Lebrón and Mangomé

simultaneously fired their handguns.1 Lebrón then observed

Whitfield grab his leg and limp away from the garage until he

eventually fell to the ground.

1
Lebrón testified that she only remembers firing once, but may
have fired multiple shots. Mangomé testified that he closed his
eyes and fired two or three shots.

-5-
 An injured Whitfield lay in the street unattended for

some period of time. Mangomé testified that he left the scene to

pursue Kawika immediately after the shooting and did not return

until about 15 to 20 minutes later. Lebrón testified that she

lingered in the garage for 8 to 10 minutes before looking for

Whitfield outside. Neither Lebrón nor Mangomé located the metal

object that Whitfield allegedly was carrying. Mangomé testified

that when he returned to the scene, another officer showed him a

metal object in the street. The officer who allegedly found the

metal object did not testify at trial, and neither Mangomé nor

Lebrón could say whether the object that was found in the street

was what they had seen in Whitfield's hands. They also did not

know whether the object was ever fingerprinted.

Hospital x-rays revealed a communal fracture2 of

Whitfield's thigh bone. Whitfield was transferred to the Puerto

Rico Medical Center, where he awaited surgery for eight days. The

day after the surgery, Whitfield was released to the Navy and was

transferred to the Naval hospital in Fajardo. Physicians at the

Naval hospital determined that, without follow-up surgery,

Whitfield's leg would not heal properly. Therefore, five days

after the initial surgery, a second surgery was performed. Despite

2
The plaintiffs' expert defined this as a “multiple fragment
fracture.”

-6-
the two surgeries, Whitfield has not recovered the full use of his

left leg and continues to suffer from chronic pain.

Following the shooting, Whitfield's parents were notified

that their son had been shot and was hospitalized in Puerto Rico.

Shortly thereafter, they flew from their home in Ohio to Puerto

Rico to visit him. They observed that he was in acute pain. After

his discharge from the Navy, Whitfield returned home to live with

his parents.

Whitfield brought the underlying civil rights action

seeking relief under 42 U.S.C. §§ 1981, 1983 and 1985 for

violations of his rights under the Fourth, Fifth, Eighth, and

Fourteenth Amendments to the United States Constitution.

Whitfield's parents, Terry and Gayle Whitfield, sought relief for

emotional damages under Article 1802 of the Civil Code of Puerto

Rico. The plaintiffs alleged that Sergeant Lebrón and Officer

Mangomé had violated Whitfield's constitutional right to be free

from the use of excessive force. They further alleged that the

city of Fajardo; the mayor, Anibal Meléndez-Rivera; and the police

commissioner, Ismael Álvarez-Monge, were liable for failing to

adopt regulations governing the proper use of firearms and to train

municipal police officers in accordance with such regulations.

-7-
 Following a flurry of pre-trial motions,3 the district

court denied cross-motions for summary judgment on the issues of

supervisory and municipal liability. The court also denied motions

to dismiss and for summary judgment seeking to invoke the qualified

immunity defense on behalf of the officers, the mayor and the

police commissioner.

The surviving claims of excessive force and municipal and

supervisory liability were heard by a jury. At the close of the

plaintiffs' case, and again at the close of all evidence, the

defendants moved for judgment as a matter of law under Fed. R. Civ.

P. 50(a). Finding that the validity of the claims and defenses

hinged on the resolution of disputed facts, the court denied these

motions and submitted the case to the jury. The jury thereafter

returned a verdict in favor of the plaintiffs on all claims, and

awarded the plaintiffs $5 million in compensatory and $98,000 in

punitive damages. The court again denied the defendants' effort to

invoke qualified immunity and entered judgment consistent with the

verdict and the jury's award of damages.

The defendants filed a joint post-trial motion seeking

judgment as a matter of law or a new trial, see Fed. R. Civ. P.

50(b), 59(a), or a remittitur of the damages award, see Fed. R.

3
The district court dismissed plaintiffs' conspiracy claims
under 42 U.S.C. §§ 1983 and 1985, plaintiffs' racial discrimination
claim under 42 U.S.C. § 1981, and plaintiffs' Eighth Amendment
claim. These rulings are not challenged on appeal.

-8-
Civ. P. 59(e). They argued that the two police officers, the

mayor, and the police commissioner should have been afforded

qualified immunity because their conduct had been reasonable under

the circumstances. The city, the mayor, the police commissioner,

and Sergeant Lebrón additionally argued that grounds for the

imposition of municipal and supervisory liability had not been

established. The defendants also argued that the district court

had committed several evidentiary, instructional and trial

management errors necessitating a new trial. Finally, the

defendants argued that a remittitur was required because the

compensatory damages were excessive and punitive damages were not

warranted. The district court denied the defendants' joint post-

trial motion on all grounds. This appeal followed.

II.

A. Qualified immunity: officers Lebrón and Mangomé

Defendants Lebrón and Mangomé argue that the district

court erred in not granting them qualified immunity for two

reasons. First, they argue that the plaintiffs failed to present

sufficient evidence to establish a violation of Whitfield's

constitutional rights. Second, they argue that their conduct was

objectively reasonable under the circumstances. They emphasize

that they were forced to make a split-second decision, under

hostile circumstances, about whether their use of deadly force

would be justified. Given the volatility of the situation, most

-9-
notably their belief that Whitfield was turning to shoot at them,

they argue that their decision to fire in self-defense was not

unreasonable. The fatal flaw in the defendants' argument is that

it ignores the clear implication of the jury's verdict: that the

jury did not believe their self-defense story.

We review the district court's denial of qualified

immunity de novo. See Jarrett v. Town of Yarmouth, 331 F.3d 140,

146 (1st Cir. 2003). When, as here, the defendants appeal from a

denial of qualified immunity after a jury verdict has been

rendered, the evidence is “construed in the light most hospitable

to the party that prevailed at trial,” and deference is “accorded

the jury's discernible resolution of disputed factual issues.” Id.

at 147 (quoting Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir.

1999)).

The doctrine of qualified immunity provides a safe harbor

for public officials acting under the color of state law who would

otherwise be liable under 42 U.S.C. § 1983 for infringing the

constitutional rights of private parties. See Anderson v.

Creighton, 483 U.S. 635, 638 (1987). It is a compromise that

“strives to balance [the] desire to compensate those whose rights

are infringed by state actors with an equally compelling desire to

shield public servants from undue interference with the performance

of their duties and from threats of liability which, though

unfounded, may nevertheless be unbearably disruptive.” Buenrostro

-10-
v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992). Public officials are

therefore entitled to qualified immunity unless the facts establish

that their conduct violated a constitutional right that was

“clearly established” at the time of the violation such that a

reasonable officer would have known that the conduct at issue was

unlawful. Santana v. Calderon, 342 F.3d 18, 23 (1st Cir. 2003).

We ordinarily assess claims of qualified immunity under

a three-part test. Riverdale Mills v. Pimpare, 392 F.3d 55, 60-61

(1st Cir. 2004). First, we ask whether the facts alleged, taken in

the light most favorable to the plaintiff, amount to a violation of

a constitutional right. Id. at 61 (citing Saucier v. Katz, 533

U.S. 194, 201 (2001)). Second, we ask whether that constitutional

right was clearly established at the time of the alleged violation.

Id. And third, we ask whether a reasonable officer, similarly

situated, would understand that his or her conduct violated that

clearly established right. Id.

In an excessive force case, the threshold constitutional

question is analyzed under the Fourth Amendment's objective

reasonableness standard. See Saucier, 533 U.S. at 204-05 (citing

Graham v. Connor, 490 U.S. 386, 394 (1989)). Under this standard,

if an officer "reasonably, but mistakenly, believed that a suspect

was likely to fight back . . . the officer would be justified in

using more force than in fact was needed." Id. at 205. In denying

the defendants' pre-trial and mid-trial motions seeking to invoke

-11-
the qualified immunity defense, the district court found that there

were material factual disputes bearing on whether the defendant

police officers had acted reasonably under the circumstances. The

primary dispute concerned whether Whitfield posed a threat to the

officers at the time that they shot him. Specifically disputed was

whether Whitfield was running away, or whether he had stopped

running and had turned toward the officers with a metal object in

his hand.

The jury entered a verdict for the plaintiffs,

specifically finding that Lebrón and Mangomé “showed deliberate

indifference in committing acts that violated [Whitfield's] right

not to be subjected to excessive or unreasonable force during an

arrest.” In addition to compensatory damages, the jury awarded

punitive damages, finding that “the defendants acted with malice or

with intent or reckless indifference to violate” Whitfield's

constitutional rights. In light of these findings, the district

court denied qualified immunity for the police officers and entered

judgment for the plaintiffs.

We need not linger on the threshold question -- whether

the evidence established a constitutional violation.4 The Supreme

4
Although the Supreme Court has stated that the constitutional
inquiry should consider the "facts alleged" and the "parties'
submissions," Saucier, 533 U.S. at 201, when reviewing a post-
verdict qualified immunity ruling, we accept "the jury's
discernible resolution of disputed factual issues." Jarrett, 331
F.3d at 147; Wilson v. City of Boston, 421 F.3d 45, 53-54 (1st Cir.
2005).

-12-
Court concluded twenty years ago that a police officer may not use

deadly force against a fleeing suspect unless it is necessary to

prevent the suspect's escape and the suspect poses a significant

threat of death or serious physical injury to the officer or

others. See Tennessee v. Garner, 471 U.S. 1, 11 (1985); Jarrett,

331 F.3d at 149 (“[T]he use of deadly force is constitutional only

if, at a minimum, a suspect poses an immediate threat to police

officers or civilians.”). The police officers in this case

defended their actions by arguing that they had shot Whitfield in

self-defense. “[T]he problem with this argument is that it depends

upon the officers' version of the facts--a version the jury plainly

rejected.” Acosta v. City of San Francisco, 83 F.3d 1143, 1148

(9th Cir. 1996) (quoting Posr v. Doherty, 944 F.2d 91, 95-96 (2d

Cir. 1991)); Stephenson v. Doe, 332 F.3d 68, 78 (2d Cir. 2003)

(holding that the jury's verdict of liability on excessive force

"apparently credited] [the plaintiff's] account that he was not

given adequate warning and was unarmed and fleeing when he was

shot"). The evidence here was sufficient to support a finding that

an unarmed Whitfield was shot from behind as he fled. The jury

apparently credited this version of the events and we see no basis

for disturbing its finding.

With the jury having supportably found a violation of

Whitfield's Fourth Amendment right to be free from excessive force,

we next consider whether the right was clearly established at the

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time of the incident and whether "an objectively reasonable

official would have believed that the action taken violated that

clearly established constitutional right." Wilson v. City of

Boston, 421 F.3d 45, 58 (1st Cir. 2005) (internal quotation

omitted). This inquiry “must be undertaken in light of the

specific context of the case, not as a broad general proposition.”

Saucier, 533 U.S. at 201. “The contours of the right must be

sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Id. at 202 (quoting

Anderson, 483 U.S. at 640). Although the Supreme Court has

cautioned that in many cases the generalized holdings of Garner and

Graham will not provide sufficient notice to police officers, the

Court has also acknowledged that, in the obvious case, the

standards announced in those decisions alone are sufficient to

“'clearly establish' the answer.” Brace v. Hagen, 543 U.S. 194,

125 S. Ct. 596, 599 (2004); Hope v. Pelter, 536 U.S. 730, 741

(2002) (“[Officials can still be on notice that their conduct

violates established law even in novel factual circumstances.”).

Viewing the facts in the light most favorable to the

verdict, the district court correctly concluded that a reasonable

officer, similarly situated, would understand that his or her

conduct violated the rights clearly established in Garner and

Graham. This is especially true given the factual similarity

between Garner and the present case. In Garner, a burglary suspect

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attempted to escape the police by climbing over a chain link fence.

See 471 U.S. at 3. Although the arresting officer did not see a

weapon on the suspect, he shot the suspect in the back of the head

as he climbed the fence. See id. at 3-4. Applying the Fourth

Amendment balancing test, the Supreme Court stated that, while it

“is no doubt unfortunate when a suspect who is in sight escapes,

. . . the fact that the police arrive a little late or are a little

slower afoot does not always justify killing the suspect. A police

officer may not seize an unarmed, noncancerous suspect by shooting

him dead.” Id. at 11. See also Ellis v. Wynalda, 999 F.2d 243

(7th Cir. 1993) (denying qualified immunity where a police officer

shot a burglary suspect in the back after the suspect threw a

light-weight mesh bag and a jacket at the officer and then turned

and ran away); Davis v. Little, 851 F.2d 605, 607-08 (2d Cir. 1988)

(finding a Fourth Amendment violation where a fleeing felon, who

had allegedly punched and shoved two police officers in making his

escape, was subsequently shot by one of the police officers who

knew the felon was unarmed). Because the jury rejected the

defendants' contention that Whitfield appeared threatening, the

district court correctly concluded that Lebrón and Mangomé were not

entitled to qualified immunity.

B. Municipal and supervisory liability

The jury found municipal and supervisory liability on the

theory that Whitfield's injuries were a direct result of a “policy

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or practice” of the mayor and the police commissioner “and/or

[their] failure to properly train [the Fajardo police] and [to]

adopt and enforce regulations as to the proper use of force and the

proper use of firearms.” According to the plaintiffs' theory, the

absence of any municipal regulations governing the use of deadly

force illustrated that the mayor and the police commissioner (and

by implication, the city) were deliberately indifferent to the

constitutional rights of the citizens of Fajardo.

The district court denied the defendants' joint motion

for judgment as a matter of law or for a new trial. The court

found three pieces of evidence in support of the jury's verdicts:

the police commissioner's testimony that Fajardo did not have

regulations governing the use of force, the mayor's testimony that

he was unaware of any municipal regulations governing the use of

force, and Whitfield's testimony concerning the incident itself.

Although the defendants had presented evidence that the Puerto Rico

Police Department had promulgated Commonwealth-wide regulations

governing the use of force, the court found that the testimony of

the mayor and the police commissioner created a factual dispute as

to whether Fajardo had adopted these regulations and trained its

police in accordance with them. According to the court, the jury

could have inferred, from Whitfield's testimony concerning Lebrón

and Mangomé's conduct, that the officers had not been properly

trained.

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 We review the district court's denial of a motion for

judgment as a matter of law de novo. See Baron v. Suffolk County

Sheriff's Dep't, 402 F.3d 225, 237 (1st Cir. 2005). This review

requires us to “examine the evidence in the light most favorable to

the plaintiff [to] determine whether there are facts and inferences

reasonably drawn from those facts which lead to but one conclusion

-- that there is a total failure of evidence to prove plaintiff's

case.” Acevedo-Garcia, 351 F.3d at 565 (internal quotation

omitted). We review a denial of a motion for a new trial for an

abuse of discretion, see Baron, 402 F.3d at 237, and will order a

new trial only if “the verdict is against the demonstrable weight

of the credible evidence or results in a blatant miscarriage of

justice.” Acevedo-Garcia, 351 F.3d at 565 (internal quotation

omitted).

1. Fajardo's liability

Fajardo argues that the district court erred in

concluding that there was sufficient evidence to support the jury's

finding that the city had been deliberately indifferent to the

rights of its citizens. Fajardo disputes the court's

interpretation of the police commissioner's testimony, and the

significance of the mayor's and Whitfield's testimony. Moreover,

Fajardo contends that the plaintiffs' theory, that Fajardo failed

to properly train its police, was proven false by Fajardo's

uncontested evidence demonstrating the training that Lebrón and

-17-
Mangomé had received. Given this undisputed evidence, Fajardo

additionally argues that the plaintiffs failed to prove that a

deficient training program caused Whitfield's injuries. We agree

that the evidence was insufficient to establish a deficient

training program in Fajardo.

A city may only be held liable under § 1983 for its own

unconstitutional action. See Monell v. Dep't of Social Services,

436 U.S. 658, 691 (1978). This means that, under § 1983, a

municipal government will only be held liable when the “execution

of [the municipal] government's policy or custom . . . inflicts the

injury.” Id. at 694.

A city's policy of inadequately training its police force

can serve as a basis for § 1983 liability if the city's failure to

train “amounts to deliberate indifference to the rights of persons

with whom the police come into contact.” City of Canton v. Harris,

489 U.S. 378, 388 (1989). In this context, deliberate indifference

will be found where the municipality fails to provide adequate

training notwithstanding an obvious likelihood that inadequate

training will result in the violation of constitutional rights.

Id. at 390. The plaintiff must also prove that “the deficiency in

training actually caused the police officers' indifference” to the

public's constitutional rights. Id. at 391. A generalized showing

of a deficient training program is not sufficient. The plaintiff

must establish that the particular officers who committed the

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violation had been deprived of adequate training, and that this

specific failure in training was at least a partial cause of the

ultimate injury. See Young v. City of Providence, 404 F.3d 4, 26

(1st Cir. 2005).

The parties agree that the Puerto Rico Police Department

had promulgated regulations governing the proper use of deadly

force and that these regulations were applicable to the municipal

police as well as to the Commonwealth police.5 The district court,

however, found that there was a factual dispute as to whether

Fajardo had adopted these regulations and trained police officers

in accordance with them. The plaintiffs' primary evidence

establishing this claim was testimony by the mayor and the police

commissioner to the effect that there were no municipal regulations

concerning the use of deadly force. According to the court, the

jury could infer from this evidence, and from Whitfield's testimony

concerning the officers' conduct in violating his constitutional

rights, that the officers had not been properly trained in the use

of deadly force.

5
In its order denying the defendants' joint post-trial
motions, the district court took judicial notice of Commonwealth of
Puerto Rico Police Department General Order 95-13, but refused to
consider General Order 99-4, which had not been brought to the
court's attention until after trial. Fajardo argues that the
court's refusal to take judicial notice of the latter regulation
was error. Because Fajardo prevails on the issue of municipal
liability regardless of our resolution of this question, we bypass
this argument.

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 Such an inference was not warranted on the undisputed

facts of this case. The undisputed evidence is that both officers

were in fact trained by the Puerto Rico Police according to the

policies of the Puerto Rico Police Department. General Order 95-

13, a Puerto Rico Police regulation enacted pursuant to the

Municipal Police Act,6 provided guidance concerning the use of

deadly force consistent with Tennessee v. Garner.7 The defendants'

evidence included diplomas certifying that both officers had

successfully completed the intensive preparatory course

administered by the Puerto Rico Police Department, certificates of

6
As a municipality of Puerto Rico, Fajardo is subject to the
Commonwealth's “Municipal Police Act.” See 21 P.R. Laws Ann. §
1061, et seq. Under the Act, all the members of a municipal police
force must complete “the basic training courses offered by the
School of Police Science of the Puerto Rico Police Academy.” 21
P.R. Laws Ann. § 1066. They must pass “an intensive preparatory
course which shall be designed in coordination with the
Commonwealth Police and which shall be administered by the
Commonwealth Police Academy.” 21 P.R. Laws Ann. § 1067(e). Local
police are not certified as “Municipal Police Officers” until they
meet the training requirements of the Commonwealth Police
Department. See 21 P.R. Laws Ann. § 1063.
7
General Order 95-13, in effect from 1995 until 1999,
provided, in relevant part:

1. When utilizing a firearm only the minimum amount of
force necessary to fulfill the mission shall be utilized.
2. The regulations weapon shall be considered a defense
weapon, NOT an arrest tool.
3. Any other means and/or alternative shall be utilized
before recurring [sic] to the use of the regulations
weapon.
4. Firing a firearm from or against a moving vehicle is
forbidden, unless the people in the other vehicle are
utilizing mortal physical force against the policeman or
other citizens.

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training received by both officers establishing that they had

participated in ongoing training in the proper handling and use of

firearms, and the testimony of Mangomé and Lebrón that they had

been trained concerning the constitutional standard for employing

deadly force. Lebrón and Mangomé specifically testified that they

had been trained that a police officer may only use deadly force

when the officer's life or the life of another person is in

danger.8 None of this evidence was disputed or impeached.9

Given this evidence of training, the plaintiffs bore the

burden of establishing a material factual issue with respect to

whether the training received did not include adequate instruction

on the proper use of deadly force. The plaintiffs' evidence failed

to raise such a dispute. Whether Fajardo promulgated its own

regulations is irrelevant to the lack of training claim, and the

plaintiffs' evidence does not otherwise rebut or contradict the

evidence that Lebrón and Mangomé were trained in accordance with

8
Mangomé testified that he had received training by the
Commonwealth Police at the academy and at refresher classes held at
the local police station concerning how to apprehend a fleeing
suspect. He testified that the training sessions taught him that
“[y]ou only fire the weapon once you feel your life or the life of
another is threatened.” Lebrón likewise testified that she was
trained that she could use her weapon “[a]s soon as I was subject
at any time to imminent danger.”
9
The plaintiffs argue that the verdict illustrates that the
jury disbelieved Lebrón and Mangomé. The verdict, however, only
indicates that the jury disbelieved the officers' self-defense
story. The award of punitive damages against Lebrón and Mangomé
suggests, to the contrary, that the officers were aware, or should
have been aware, that their conduct violated Whitfield's
constitutional rights.

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the Municipal Police Act and the related Police Department

regulations governing the use of force.

The testimony of the mayor and the police commissioner

does not create a factual dispute as to whether Fajardo had

actually adopted or enforced these regulations. The police

commissioner's testimony, which consisted of a portion of his

deposition testimony that was read into evidence, is insufficient

on its face to rebut the evidence of training in the record:

Q. Aside from the regulations is there any
written guideline for police officers . . . by
which they're given guidelines on the
excessive use of force or on the usage of a
firearm aside from the regulations?

A. The regulation does not specify telling a
person when it is going to be used and when it
is not going to be used. . . . In other
words, this is a matter . . . for the police
officer to determine himself at that time he
finds himself in a situation. In other words,
there's nothing in writing. There is no kind
of guideline that tells a police officer when
to use the force and when he is not going to
use it.

* * *

Q. In other words, that the guidelines that
the Fajardo Municipal Police have with regards
to when to use or not to use or when it's
adequate to use or not use a firearm do not
exist in writing?

A. No. For . . . no, no, definitely. That's
a matter that at the moment that the police
officer is protecting his life and protecting
the lives and properties which are his
functions. In other words, there's nothing in
writing with regards to that.

-22-
 Q. Is there any policy or unwritten practice
on behalf of the Fajardo Municipal Police with
regards to when it is adequate or not to use a
firearm?

A. There's no practice nor any public policy
with regards to that, neither verbal nor in
writing.

(Emphasis added). On cross-examination, the police commissioner

explained that his deposition answers were

based on the questions that were posed to me
as to whether the municipality had anything in
writing with regards to the use of firearms.
And at that time I understood that the
question was in reference to the municipality
and not to the Municipal Police Force. . . .
In Puerto Rico Police regulations the usage of
firearms is set forth.

(Emphasis added).

The police commissioner's testimony explicitly noted the

existence of Puerto Rico regulations governing the use of force by

police. Indeed, the plaintiffs' inquiry began with the qualifying

phrase “aside from the regulations.” The police commissioner

merely conceded that, although there are Commonwealth regulations

governing the use of force, the municipality has not created a more

specific set of guidelines or standard operating procedures.

Rather, the police officer in the field is required to apply the

regulations to the specific situations in which he finds himself.

The police commissioner never suggested that Fajardo's police

officers are not trained with regard to the proper use of force.

The mayor's testimony, as to his unawareness of any municipal

-23-
regulations, is similarly unhelpful to the plaintiffs. At most, it

establishes that Fajardo did not promulgate its own set of

regulations; it does not, however, establish a policy of

inadequately training the Fajardo police force.

Without any independent evidence of an inferior training

program, the jury could not have inferred, merely from Whitfield's

testimony of the incident itself, that there was a policy or custom

of inadequate training in Fajardo. See Oklahoma City v. Tuttle,

471 U.S. 808, 823-24 (1985) (a single shooting incident

insufficient to establish municipal liability for inadequate police

training); Fabiano v. Hopkins, 352 F.3d 447, 452 (1st Cir. 2003)

(absent some other evidence of an unconstitutional policy or

custom, “a single incident of misconduct cannot provide the basis

for municipal liability under § 1983”).

Given the undisputed evidence of training, the plaintiffs

failed to satisfy the threshold burden of establishing either that

Fajardo failed to train Lebrón and Mangomé, or that the training

received by Lebrón and Mangomé was “inferior by the standards of

the profession.” Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir.

1989).10 Moreover, even were we to accept that the city's training

10
We pause to emphasize the distinction between the present
case and our recent decision in Young v. City of Providence, 404
F.3d 4 (1st Cir. 2005) (reversing the district court's award of
summary judgment to the city). In that case there existed material
factual disputes and inconsistent testimony regarding the extent of
police training. See id. at 27-28. Here, by contrast, the
evidence is uniform that officers Lebrón and Mangomé were trained
in the proper use of force.

-24-
program was lacking in some respect, there is nothing to indicate

that the city was deliberately indifferent to the rights of its

citizens. See DiRico v. City of Quincy, 404 F.3d 464, 469 (1st

Cir. 2005); Santiago, 891 F.2d at 382 (holding that evidence that

police officers only received four hours of training with regard to

constitutional issues did not establish “a 'conscious' policy to

train inadequately”).

The plaintiffs advance an alternative basis for holding

Fajardo liable: that the Fajardo police department fostered “a

culture of leaving it to the officer,” thereby granting its

officers carte blanche to exercise unfettered discretion in the

field. According to this theory, even if Fajardo's police officers

were properly trained, the Fajardo police department's

encouragement of its officers to make unrestricted on-the-spot

determinations about how much force to employ superseded any

training they had previously received. The plaintiffs argue that

Fajardo should be held liable for this unconstitutional “custom.”

There are two requirements to prove a claim grounded on

custom. First, the custom or practice must be attributable to the

municipality. That is, it must be “so well settled and widespread

that the policymaking officials of the municipality can be said to

have either actual or constructive knowledge of it yet did nothing

to end the practice.” Bordanaro v. McLeod, 871 F.2d 1151, 1156

(1st Cir. 1989). Second, the custom must have been the cause of

-25-
and “the moving force behind” the constitutional violation. Id. at

1157.

Plaintiffs point to three pieces of evidence supporting

their theory that Fajardo had an unconstitutional custom: (1) the

police commissioner's deposition testimony that it was up to

individual officers to determine the appropriate level of force;

(2) the mayor's testimony that he was unaware of any municipal

regulations governing the use of force; and (3) the fact that

neither Lebrón nor Mangomé were disciplined for the incident.

But again, even viewed in the light most favorable to the

plaintiffs, the mayor and the police commissioner's testimony does

not establish that Fajardo police officers had unfettered

discretion to employ deadly force. The police commissioner merely

testified that police officers in the field are given the

discretion to apply the regulations to the particular circumstances

that they face, and the mayor simply answered the plaintiffs'

narrow question: whether he was aware of any municipal regulations.

No reasonable juror could infer from the mayor's and the police

commissioner's testimony that the Fajardo police department gave

its police officers blanket authority to disregard the

constitutional limitations imposed on the use of deadly force.

Finally, the fact that neither Lebrón nor Mangomé was

disciplined for this incident, see Wierstak v. Heffernan, 789 F.2d

968, 975 (1st Cir. 1986) (finding the lack of an internal

-26-
investigation into allegations of excessive force by police

officers to be probative of the city's gross negligence), does not

provide a sufficient basis by itself to support the jury's verdict.

In Wierstak, among the probative evidence supporting municipal

liability was the fact that the city had never conducted “any sort

of investigation into the circumstances” of the plaintiff's

allegedly unlawful arrest. Id. at 975 (emphasis added). In this

case, however, there was an investigation into the shooting

incident. According to Mangomé, the investigation concluded that

Lebrón and Mangomé had been justified in their use of force. Given

that the question of whether Lebrón and Mangomé were justified in

firing at Whitfield was fact-based and was hinged on competing

versions of the events, it is not surprising that two different

fact-finders (the police investigators and the jury in this case)

came to two different conclusions. Standing alone, the lack of any

disciplinary charges against Lebrón and Mangomé is not probative of

a “well settled and widespread” policy or custom. See Santiago,

891 F.2d at 382. Nor does it establish deliberate indifference by

the city. See DiRico, 404 F.3d at 469.

-27-
 2. The mayor's and the police commissioner's
liability11

As set forth above, the mayor and the police

commissioner, like the city of Fajardo, were held liable for

failing to promulgate regulations regarding the proper use of

deadly force, and for failing to adequately train the police in

accordance with such regulations. They argue, similarly to

Fajardo, that there was no evidence of deliberate indifference, nor

was there evidence of a causal link between the allegedly deficient

training and the injury to Whitfield.

Like municipal liability, supervisory liability cannot be

predicated on a respondeat superior theory. Barreto-Rivera v.

Medina-Vargas, 168 F.3d 42, 48 (1st Cir. 1999). Supervisors may

only be held liable under § 1983 on the basis of their own acts or

omissions. Id. Supervisory liability can be grounded on either

the supervisor's direct participation in the unconstitutional

conduct, or through conduct that amounts to condonation or tacit

authorization. See Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st

Cir. 1999). Absent direct participation, a supervisor may only be

held liable where “(1) the behavior of [his] subordinates results

in a constitutional violation and (2) the [supervisor's] action or

11
As Mangomé's immediate supervisor, Sergeant Lebrón was also
found liable under a theory of supervisory liability. Because we
uphold the district court's conclusion that Lebrón is liable as a
direct participant in the unconstitutional conduct, we do not
address her argument that she should not be held liable as a
supervisor.

-28-
inaction was 'affirmatively link[ed]' to the behavior in the sense

that it could be characterized as 'supervisory encouragement,

condonation or acquiescence' or 'gross negligence . . . amounting

to deliberate indifference.'” Hegarty v. Somerset County, 53 F.3d

1367, 1379-80 (1st Cir. 1995) (quoting Lipsett v. Univ. of Puerto

Rico, 864 F.2d 881, 902-03 (1st Cir. 1988)).

Our holding with respect to Fajardo's municipal liability

informs our analysis of the mayor's and the police commissioner's

supervisory liability. Because the plaintiffs failed to provide

sufficient evidence establishing that Fajardo's police officers

were inadequately trained, it follows that the plaintiffs failed to

prove that the mayor and the police commissioner were deliberately,

recklessly or callously indifferent to the constitutional rights of

the citizens of Fajardo. The plaintiffs failed to show that there

were any training deficiencies, much less that the mayor or the

police commissioner “should have known that there were . . .

training problems.” Febus-Rodriguez v. Bentancourt-Lebron, 14 F.3d

87, 92 (1st Cir. 1994). Moreover, as discussed above, the evidence

was insufficient to support the theory that the mayor or the police

commissioner had condoned an unconstitutional custom.12

12
Lebrón and Mangomé also request a new trial based on several
alleged evidentiary and trial management errors by the district
court. Because the defendants have entirely failed to present any
developed argumentation concerning these issues, we deem them
waived. See Acevedo-Garcia, 351 F.3d at 560-61 (“We have
steadfastly deemed waived issues raised on appeal in a perfunctory
manner, not accompanied by developed argumentation.”) (quotation
omitted); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

-29-
 C. Damages

The jury, which decided to hold the defendants jointly

and severally liable, awarded Whitfield $4 million in compensatory

damages for his mental and physical damages and pain and suffering,

and Whitfield's parents $500,000 each in compensatory damages for

their emotional damages and pain and suffering.13 Additionally,

finding that the defendants “had acted with malice or with intent

or reckless indifference to violate . . . Whitfield's federally

protected constitutional rights” the jury awarded Whitfield $98,000

in punitive damages payable by each defendant in his or her

individual capacity: $15,000 each from officers Lebrón and Mangomé,

$18,000 from the police commissioner, and $50,000 from the mayor.

In their joint post-trial motion, the defendants argued that the

award of compensatory damages and punitive damages was excessive

and sought a remittitur. The district court denied the motion.

On appeal, the defendants argue that Whitfield's

compensatory damages award was grossly excessive in light of the

conflicting evidence concerning the nature and the extent of his

injuries. Particularly, they argue that there is little evidence

establishing the permanency of Whitifield's injuries. The

13
Whitfield's parents' supplemental state law claims were
brought under Article 1802 of the Civil Code of Puerto Rico --
Puerto Rico's general tort law statute. That statute allows a
plaintiff to collect damages from “a person who by an act or
omission causes damage [to the plaintiff] through fault or
negligence.” 31 P.R. Laws Ann. § 5141.

-30-
defendants also renew their argument that the award of $500,000 to

each of Whitfield's parents is grossly disproportionate to the

evidence of their mental or emotional pain and suffering, and

challenge the awards of punitive damages.14

Our inquiry on appeal is “limited to determining whether

the trial court abused its discretion in refusing to set aside the

verdict as excessive.” Acevedo-Garcia v. Monroig, 351 F.3d 547,

566 (1st Cir. 2003) (internal quotations omitted). While our

review of the punitive damages award is de novo, we will only alter

the award if “we find it certain that the amount in question

exceeds that necessary to punish and deter the alleged misconduct.”

Id. (internal quotation omitted). Because of our deference to the

jury's calculation of damages -- particularly in cases that involve

little or no economic loss -- we impose a heavy burden on the

14
The defendants also contend that the jury was erroneously
instructed that the defendants could be held liable not only for
the immediate injury resulting from the shooting, but also “for any
additional damages sustained as a consequence or result of
subsequent malpractice by those who provided medical care to
[Whitfield] in treating his injuries.” They argue that, under
Puerto Rico law, a defendant may only be held liable for a third-
party's malpractice when the medical treatment provided by the
third-party was reasonably required. See Rodriguez Sosa v.
Cerveceria India, 106 D.P.R. 479, 483 (1977); Mercedes v. Gobierno
de la Capital, 85 D.P.R. 552 (1962). The defendants claim that
Whitfield's own expert testified that the second operation was not
necessary. Therefore, the defendants contend, the court's
instruction was erroneous, and the court should have granted a
remittitur or a new trial on damages to correct the jury's award.
In our view, the expert's testimony could not ground a finding by
the jury that the second operation was beyond that which was
reasonably required. Thus, even if we assume arguendo that the
court's instruction was faulty, the error was harmless; the jury
could only have found as it did.

-31-
defendants to prove that the damage award is “grossly excessive,

inordinate, shocking to the conscience of the court, or so high

that it would be a denial of justice to permit it to stand.” Id.

(internal quotations omitted); Grajales-Romero v. Am. Airlines,

Inc., 194 F.3d 288, 300 (1st Cir. 1999) (applying the above federal

standards for judging excessiveness in a Puerto Rico case). Thus,

we will not disturb a damages award merely because we find it

extremely generous, but will only reverse if we find the award “so

grossly disproportionate to any injury established by the evidence

as to be unconscionable as a matter of law.” Koster v. Trans World

Airlines, 181 F.3d 24, 34 (1st Cir. 1999).

1. Whitfield's compensatory damages

Although there is evidence that Whitfield suffered

through a terrifying and painful experience, and there is evidence

that at least some aspects of his injuries are permanent, we

conclude that an award of $4 million dollars solely for his mental

and physical pain and suffering15 is unconscionable as a matter of

law in this case.

15
The plaintiffs' brief argues that some portion of Whitfield's
award is attributable to economic damages for lost income. The
jury's award, however, clearly did not contemplate economic
damages. The verdict form and the jury instructions, which were
not objected to, only provided for “mental or emotional suffering
or physical damages or pain and suffering.” Moreover, the evidence
of lost income was not sufficiently specific to ground an award on
that basis.

-32-
 The defendants cite to a number of cases in attempting to

illustrate the excessive nature of Whitfield's damages. See

Anthony v. G.M.D. Airline Services, Inc., 17 F.3d 490 (1st Cir.

1994) (overturning a $571,000 jury award to a plaintiff who

sustained a leg injury resulting in a 20 percent whole-body

disability); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st

Cir. 1989) (upholding a jury award of $4.5 million to a plaintiff

who was rendered paraplegic after being shot in the back by

police); Torres v. Kmart Corp., 233 F. Supp. 2d 273 (D.P.R. 2002)

(upholding a jury award of $1.6 million to a plaintiff whose slip-

and-fall resulted in a permanent back injury); McCollum v.

McDaniel, 136 F. Supp. 2d 472 (D. Md. 2001) (reducing an award of

$3.5 million to $1.25 million in an excessive force case where the

plaintiff lost an eye and suffered permanent impairment to one

hand). We cannot just rely on these cases, however, because they

are all distinguishable from the present case in important

respects. For instance, although Gutierrez-Rodriguez presents the

most comparable factual circumstances, it is not particularly

helpful as a comparison because it was decided 16 years ago.

Moreover, our “paramount focus in reviewing the damage award must

be the evidence presented at trial,” for we will not disturb a jury

award “merely because the amount of the award is somewhat out of

line with other cases of a similar nature.” Gutierrez-Rodriguez,

882 F.2d at 579-80.

-33-
 The evidence established that Whitfield was shot twice in

the back of the left leg, the first shot entering the back of his

calf, and the second shot entering his thigh and shattering his

femur. According to Whitfield, he lay face-down bleeding in the

street for what “seemed like” 15 minutes before the police came to

him.16 They then handcuffed him and did not provide him any medical

treatment until the ambulance arrived. When Whitfield arrived at

the Fajardo hospital, the police threatened to withhold medical

attention until he would give a statement. Whitfield, still

suffering “excruciating” pain, waited eight hours for an assessment

of his injuries before he was transferred to Puerto Rico Medical

Center where he waited another eight days for his first surgery.

The following day he was transferred to the Naval hospital where

doctors performed a second surgery on Whitfield's leg.

There is evidence that some of Whitfield's injuries are

permanent. Whitfield's expert testified that to correct

Whitfield's shattered femur, doctors had to attach a metal rod and

a metal plate to his femur using ten screws. He further testified

that the bullet that entered Whitfield's calf partially ruptured

the nerves in his calf causing permanent neurological damage and

resulting in a limited range of motion in Whitfield's left ankle.

The expert also testified that Whitfield “has permanent atrophy in

the outer . . . aspect of his left thigh.” Finally, he testified

16
The officers' testimony establishes that he laid in the
street unattended for at least 8 to 10 minutes.

-34-
that a weakened ligament in Whitfield's knee, combined with the

permanent atrophy in his thigh, leaves Whitfield with a weak knee

that will continue to be a problem for Whitfield in the future.

The result of these injuries, according to Whitfield's

expert, is a 48 percent impairment of his left lower extremity and

a 19 percent impairment of his entire body. Because Whitfield's

weakened ankle has a tendency to roll and his weakened knee has a

tendency to give out, he is unable to participate in many different

activities and sports. Whitfield also has a condition in his left

leg and foot called “disestesias,” which is an “abnormal sensation

of pin, needle, burning, unpleasant sensation, [and] itching.”

Whitfield testified that when he wakes up in the morning his leg is

often sore and he gets cramps in his foot. Whitfield's parents

also testified that they frequently observe their son in pain.

While some evidence tends to undercut Whitfield's claims

-- the concession of Whitfield's expert that Whitfield can walk

normally, Whitfield's admissions that ten months after the incident

he passed the Navy's physical readiness test by running a quarter-

mile in 2 minutes and 20 seconds, that some months later he was

able to lift a 40-pound tire off a four-foot-high stack of tires

while working in the automotive department of a wholesale retailer,

and that he has not taken any pain medication since May 2002 -- the

jury was not required to accord significant weight to this

evidence. Nevertheless, viewing the evidence in the light most

-35-
favorable to Whitfield, we conclude that the award of $4 million

was grossly disproportionate to the evidence of Whitfield's

injuries. In closing argument before the jury, Whitfield's

attorney stated that “the kind of pain and suffering that this

young man is going through, and will go through, is worth at least

$2 million.” Although this statement was an attempt to set a

floor, not a ceiling, it acknowledged that an award of $2 million

would, at a minimum, sufficiently compensate Whitfield for his pain

and suffering. We can accept that the jury might award a higher

amount, but we cannot divine the basis for an award that doubles

the amount that the plaintiff had conceded would be sufficient

compensation. After a careful review of the record, we conclude

that the evidence of Whitfield's physical and mental pain and

suffering would not support a maximum recovery in excess of $3

million. See Koster v. Trans World Airlines, 181 F.3d 24, 36 (1st

Cir. 1999) (setting forth the “maximum recovery rule” whereby this

court sets a remittitur amount that “represents the highest amount

for which there is adequate evidentiary support”). We therefore

remand to the district court with instructions to vacate the $4

million award and order a new trial on compensatory damages for

Whitfield, unless Whitfield agrees to remit $1 million.

2. Whitfield's parents' compensatory damages

There is a case that is sufficiently similar and close in

time to be useful as a comparison in assessing the proportionality

-36-
of Whitfield's parents' compensatory damage awards. In Smith v.

Kmart Corp., 177 F.3d 19 (1st Cir. 1999), we ordered that an award

of $250,000 to the husband of a woman who had been injured by a

falling ice cooler be remitted to $100,000. Although there are

aggravating circumstances in this case that were not present in

Smith -- the fact that Whitfield was shot by police, that his

parents were forced to travel from Ohio to Puerto Rico to see their

son in the hospital, and that Whitfield's father was himself just

recovering from surgery -- there were several aggravating

circumstances in Smith that are not present here. Most notably,

the plaintiff in Smith was present at the scene of the accident and

testified to his horror in watching as his wife was struck and lost

consciousness. See id. at 32. He testified that he performed CPR

on his wife and thought, at various times, that she was either dead

or paralyzed. See id. Moreover, he testified to all of the

medical visits on which he had accompanied his wife, that he

constantly worried about her condition, and that he was emotionally

and mentally tired. See id. The plaintiff in Smith, who had a

loss of consortium claim, testified that due to his wife's injuries

he was forced to do more housework and to work longer hours at his

job, and that his relationship with his wife had lost all of its

intimacy. See id.

Here there is no loss of consortium, nor is there any

specific evidence showing that Whitfield's parents do not enjoy the

-37-
same quality of life they enjoyed before the incident. There is

only generalized testimony that his mother and father were “very

upset” when they learned what had happened. Gayle Whitfield

testified that she was so distraught that she could not work for a

month. She also testified that she has observed her son in pain

and that she worries about the difficulties he will encounter in

the future. Terry Whitfield testified that he was shocked by the

news that his son was shot. The father similarly testified that he

has witnessed his son in pain and that he worries about his future.

The parents did not, however, provide any expert testimony

concerning their emotional distress. See Koster, 181 F.3d at 35

(testimony from mental health expert not required to prove

emotional distress, but absence of such evidence is relevant to

amount of the award).

This generalized evidence of Whitfield's parents'

emotional pain and suffering “does not rise to a level commensurate

with the amount of damages awarded.” Smith, 177 F.3d at 32. We

therefore find the jury's award of $500,000 to each of Whitfield's

parents to be grossly excessive. Under the maximum recovery rule,

see supra, we order a new trial on compensatory damages for

Whitfield's parents, unless they agree to remit their awards in

excess of $100,000 each.

-38-
 3. Punitive damages

Because we vacate the verdicts as to the mayor and the

police commissioner, we also vacate their portion of the punitive

damages award. Thus, we vacate the award of $50,000 in punitive

damages from the mayor and the award of $18,000 in punitive damages

from the police commissioner.

As to officers Lebrón and Mangomé, the defendants argue

that there should be no punitive damages because there was no

evidence presented of a pattern of misconduct on the part of the

officers. This argument is beside the point. The jury had

sufficient evidence to find, and did find, that the officers acted

with “malice or with intent or reckless indifference” to

Whitfield's constitutional rights. A $15,000 award of punitive

damages against each officer can hardly be considered excessive

given the facts of this case. The defendants also suggest that the

punitive damage awards do not reflect an intention of the jury to

deter future misconduct, but rather were their way of apportioning

the damages “to let [the defendants] know who was responsible for

what percent.” This argument is purely speculation and is

contradicted by the jury's verdict. The special verdict form gave

the jury the option of imposing liability jointly and severally to

all defendants or in individual amounts as to each defendant. The

jury chose to impose liability jointly and severally. Had the jury

wished to apportion the fault, it had the ability to do so.

-39-
 III.

In sum, we affirm the verdicts and the award of punitive

damages against officers Lebrón and Mangomé, we vacate the verdict

against the city of Fajardo, and we vacate the verdicts and the

award of punitive damages against mayor Meléndez-Rivera and police

commissioner Álvarez-Monge. We further vacate the compensatory

damage awards and remand to the district court for a new trial on

compensatory damages for each of the three plaintiffs, unless

Justin Whitfield agrees to accept a remittitur of his $4 million

award to $3 million, Terry Whitfield agrees to accept a remittitur

of his $500,000 award to $100,000, and Gayle Whitfield agrees to

accept a remittitur of her $500,000 award to $100,000. Each side

bears its own costs.

It is so ordered.

-40-