Mendez-Matos v. Municipality of Guaynabo

United States Court of Appeals
For the First Circuit

Nos. 07-2303
07-2304
07-2305
07-2433

FRANCISCO MÉNDEZ-MATOS; FRANCISCO MÉNDEZ-AYALA,

Plaintiffs, Appellants/Cross-Appellees,

v.

MUNICIPALITY OF GUAYNABO; HONORABLE HÉCTOR O'NEILL, in
his personal and official capacity as Mayor of the
Municipality of Guaynabo; ALBA ALVELO DE O'NEILL;
CONJUGAL PARTNERSHIP O'NEILL-ALVELO

Defendants, Appellees/Cross-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jamie Pieras, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Roberto Busó-Aboy for appellants/cross-appellees.
Eliezer Aldarondo-Ortiz, with whom Claudio Aliff-Ortiz was on
brief, for appellees/cross-appellants.

February 24, 2009
 LIPEZ, Circuit Judge. The primary issue in this case

involves an award of punitive damages by a Puerto Rico federal jury

in an action pursuant to 42 U.S.C. § 1983, and the subsequent

reduction of the award by the court. Plaintiff challenges the

reduction of the award. Defendants challenge the award itself.

On November 26, 2004, Mayor Héctor O'Neill and the

Guaynabo municipal police detained a construction crew working on

the city's new government center. Francisco Méndez-Ayala,

supervisor of the crew, and Francisco Méndez-Matos, his father and

the construction company's owner, brought suit against Mayor

O'Neill and the police under 42 U.S.C. § 1983 and Article 1802 of

the Puerto Rico Civil Code, claiming that their arrest was unlawful

and caused them pain and suffering. They prevailed at trial. The

jury awarded Méndez-Ayala $35,000 in compensatory damages under

section 1983 and Article 1802 and $350,000 in punitive damages

under section 1983. It awarded Méndez-Matos $50,000 in

compensatory damages under Article 1802.

Concluding that the punitive damages award violated due

process limits articulated by the Supreme Court in BMW of N. Am.,

Inc. v. Gore, 517 U.S. 559 (1996), the district court reduced the

punitive damages to $35,000. Méndez-Ayala appeals this order.

Guaynabo and Mayor O'Neill cross-appeal, contending that Méndez-

Ayala did not meet the threshold requirement for punitive damages,

that his compensatory damage award was grossly excessive, and that

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they are entitled to judgement as a matter of law on Méndez-Matos's

Article 1802 claim, or at least a reduction in the damage award.

Finding no error, we affirm.

I.

When a party challenges the sufficiency of the evidence,

"the court of appeals must take both the facts and the reasonable

inferences therefrom in the light most hospitable to the jury's

verdict." Correa v. Hosp. San Francisco, 69 F.3d 1184, 1188 (1st

Cir. 1995). We therefore state the facts as the jury reasonably

could have found them.

A. The Guaynabo-Comagro Contract

On December 7, 1999, the Municipality of Guaynabo awarded

a contract for the construction of a new government center and

adjoining parking facility to Comagro Special Partnership

("Comagro"), a general contractor owned and managed by Francisco

Méndez-Matos ("Méndez-Matos"). As originally conceived, the

government center project had a value of over $17 million dollars.

It included plans for a nine-story tower with a mezzanine, a plaza,

an amphitheater complex, above-ground parking and below-ground

parking. On January 24, 2000, the parties signed the construction

contract. The contract incorporated by reference the American

Institute of Architects "General Conditions of the Contract for

Construction" (the "AIA agreement"), which divided payment into two

stages. First, at preset intervals during construction, Comagro

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would receive "progress payments" after documenting its work to

Guaynabo. Second, Guaynabo would withhold ten percent of the

contract price (the "retainage") until the project was certified

"substantially complete." A "certificate of substantial

completion" would be awarded when an inspector determined that the

facility was sufficiently complete that it could be transferred to

Guaynabo and put to its intended use.

Construction began in early 2000, but progress was slow.

The city repeatedly altered the design of the project, submitting

at least thirty-eight "change orders" after January 2000. Those

changes led to delays. In late October 2003, three years after

signing, the parties amended the construction contract. Under the

terms of the amended agreement, construction was divided into two

phases, separating the parking facility from the rest of the

project. The city's thirty-eight change orders were incorporated

into the project's price, increasing the contract value by nearly

fifteen percent, to over $20 million dollars. Delays continued

even after the amendment. The design of important aspects of the

government center remained incomplete. As of October 2003 Comagro

still did not possess complete designs for the tower's air

conditioning system, the plaza, and other aspects of the project.

In some cases designs were not delivered until nearly one year

later, in July 2004.

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 In February 2004, four months after the amended contract

was signed, a dispute arose over the progress payments. Guaynabo

asserted that it had overpaid Comagro by $1,300,000. City

officials blamed Comagro, which had submitted payment certificates

that included the cost of unused building materials. As they

interpreted the AIA agreement, the city was not responsible for the

cost of materials unincorporated into the structure. In response,

Comagro claimed that the building materials had been properly

included in the payment certificates, that the certificates had

been approved by city officials, and that the materials remained

unused only because of the many change orders and missing designs.

By Comagro's calculation, there had been no overpayment.

Nevertheless, Guaynabo officials began to make deductions from

progress payments to account for the alleged error. Seeking the

withheld monies, Comagro filed a request for arbitration on April

15, 2004.

On October 6, 2004, in the midst of this dispute, city

project inspector Jamie Dávila ("Dávila") issued Comagro the

certificate of substantial completion. Pursuant to the AIA

agreement, Dávila included a so-called "punch list" with the

certificate. The punch list specified minor problems with the

project that Comagro was obligated to address before receiving

final payment (such as the repair of cracks, the replacement of

defective light fixtures, and cleaning). Comagro was given thirty

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days to address the items on the list. In fact, Comagro had

already corrected many of the problems on the punch list by the

time the list was received. It immediately began to resolve those

that remained.

However, on November 3 -- only a few days before the

scheduled final inspection -- Guaynabo officials provided Comagro

with a new punch list and claimed that some of the items on the

first list had not yet been addressed. On November 15, Dávila sent

a memo to Comagro asserting that deficiencies on the punch list had

still not been corrected, and that the city was therefore

withdrawing the certificate of substantial completion and imposing

liquidated damages of $1,000 a day. In Comagro's response, also

dated November 15, Méndez-Matos asserted that the construction

contract did not allow for late additions to the punch list, nor

for the withdrawal of the certificate of substantial completion.

The letter characterized as a "total contradiction" the city's

assertion that the building was now unusable for its intended

purpose, when it had been judged usable only one month earlier.

Guaynabo's conduct, it stated, was plainly retaliatory for

Comagro's decision to file for arbitration. As evidence, the

letter pointed to comments made by Mayor Héctor O'Neill ("the

Mayor") at an October 21 meeting, in which the Mayor stated that a

certificate of substantial completion should never have been

granted because Comagro had filed for arbitration. Nevertheless,

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the letter stated, Comagro would continue to prepare the project --

which was already complete -- for delivery.

Until this point, the Mayor's involvement with the

government center project had been indirect. He had not seen the

construction contract, the certificate of substantial completion,

or its accompanying punch list. He had not inspected the project.

Instead, he received reports on the status of the project from the

public works director, who in turn relied on the city's legal

division, its finances department, and the project inspector,

Dávila. This team told the Mayor that the government center was

severely delayed, that the city and Comagro were embroiled in a

payment dispute, and that Comagro had filed for arbitration. At

some point in the weeks before November 26, however, the Mayor

began to personally inquire about the status of the project. He

asked several city officials when the city would take possession of

the building. He made multiple phone calls to the director of the

legal division, asking "if the process for me to make use of the

[government center] parking lot had concluded."

On November 18, the city sent a "default letter" to

Comagro. The letter, on which the Mayor was briefed,1 asserted

that Comagro was in breach of the amended contract for

1
The Mayor offered conflicting testimony on this point. See
infra text accompanying note 11. Taking the facts in the light
most hospitable to the verdict, we infer that he knew what the
default letter stated by November 26.

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construction. The agreed-upon delivery date for the project, it

stated, had been January 21, 2004; by this count, Comagro was late

by 292 days. Moreover, Comagro had failed to fix construction

deficiencies identified on the punch list within the thirty-day

deadline for doing so. The letter concluded that Comagro was in

default, demanded immediate delivery of the project, and reiterated

Comagro's responsibility to "respond[] for any construction

deficiency or defect, evident or hidden, which may be detected by

the [city] at the project."2

Méndez-Matos told no one at Comagro about the default

letter when he received it on November 24. In his view, the

termination effected by the default letter was unlawful, because

2
The pertinent portions of the default letter read as
follows:
1. Pursuant to the contractual breaches indicated,
the MG [Municipality of Guaynabo] reiterates its
declaration of default, wherefore it demands the
immediate delivery of the project. COMAGRO must comply,
likewise, with its obligation to facilitate to the MG the
material possession of the Project and that it may
continue with the completion of the work with each and
every one of the existing subcontractors, and the
materials, equipment, tools, construction equipment and
machinery existing at the Project and belonging to said
subcontractors or COMAGRO. . . .
4. This declaration of default does not release the
contractor in any way or manner from its obligation to
respond for itself or through its subcontractors and
bonding agents to maintain in effect and valid all of the
guarantees incidental to: (i) true and full completion of
the construction contract . . . .
5. The termination of this Contract, does not
release COMAGRO from responding for any construction
deficiency or defect, evident or hidden, which may be
detected by the MG at the project . . . .

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the city had failed to follow the procedures required by the AIA

agreement for termination of the general contractor. More

importantly, however, under the AIA agreement a terminated

contractor was entitled to seven days notice before having to

deliver a project to the owner. Thus, on Friday, November 26, two

days after Comagro received the default letter, it sent its

employees to the government center to "correct construction

deficiencies" and clean up, in preparation for delivery of the

building.

B. The Government Center Detainment

The first Comagro employee to arrive at the construction

site on November 26 was Victor Santiago ("Santiago"), the project

foreman during the last two years of construction. Ten workers

arrived sometime later, around 7:00 a.m. Using keys from the

Comagro office, Santiago unlocked the project site and assigned the

workers to tasks on the first floor of the parking facility, the

fourth floor of the tower, the mezzanine, and the plaza. Francisco

Méndez-Ayala ("Méndez-Ayala"), the project supervisor and Méndez-

Matos's son, arrived at the site around 8:00 a.m. Méndez-Ayala

went to the parking facility, where he supervised workers cleaning

up and patching cracks in the concrete. Sometime around 8:30 a.m.,

Santiago observed the Mayor talking on his cell phone outside the

government center. The Mayor circled the building, but did not

enter. Work continued until around 9:00 a.m., when the Comagro

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workers took a fifteen-minute break. After the break, Méndez-Ayala

returned to the first floor of the parking facility, where he was

later joined by Santiago.

Around 9:30 a.m., Mayor O'Neill left his office in the

old city hall and returned to the government center. As he

approached the building's parking facility, he noticed that one of

its rolling gates was open. Concerned about this, he called the

city public works director, the director of operations, and project

inspector Dávila, but reached none of them. He made no effort to

contact Comagro or Méndez-Matos. At some point, however, the Mayor

contacted the municipal police. Lieutenant Wilfredo Martinez, who

was off duty at the time, was called to the scene, where he

received orders from the Mayor to clear Comagro workers from the

building, establish control of the three exits, and prevent anyone

else from entering the building. Other officers arrived,

including, at some point, both the police commissioner and the

police commander. The Mayor then entered the parking facility

through the open rolling gate, partially closing it behind him.

Accompanying him were ten to fourteen police officers, some of them

armed, several police motorcycles, and several "four-track"

vehicles driven by police officers.

When Santiago and Méndez-Ayala saw the Mayor approach

them in the parking facility, the Mayor appeared irate. He yelled

that their work was "garbage," "shit," and that Comagro was "the

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shittiest company he had seen in his life." He told the employees

that they were all "fired," and that they should stop work and

leave. Turning to officers in the four-track vehicles, he directed

them to drive through cement freshly poured on the parking facility

floor. Meanwhile, outside, additional patrol cars began to arrive

and position themselves at the entrance to the parking facility.

Taken aback, Méndez-Ayala asked the Mayor what was going on and why

they should stop working. In response, Méndez-Ayala testified, the

Mayor "changed his mind." Instead of removing the Comagro

employees from the site, he detained them there:

All of a sudden, he changed -- changed his
mind. And I said, well, hey, wait a minute.
What's going on? And I said -- I mean, I
tried to talk with him to see, but then all of
sudden he changed again and said we were all
detained and he said that we were all under
arrest.3

The Mayor ordered the officers posted at the rolling gate to shut

it. He told the employees that they were not to touch any of their

tools, which were being impounded by the city. He then left the

parking facility and went up a flight of stairs to the first floor

of the tower. Méndez-Ayala, Santiago and several workers remained

behind, where they were detained by armed police officers. Comagro

3
Although Méndez-Ayala's testimony appears to indicate that
Mayor O'Neill changed his mind twice, it is unclear whether the
Mayor twice asked Méndez-Ayala to leave and twice changed his mind.
Counsel for Guaynabo briefly inquired into this issue on cross-
examination, but the responses to that line of questioning were
also unclear.

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workers who had been assigned elsewhere in the project soon joined

them, escorted there by police.

Méndez-Ayala was then able to convince a police officer

in the parking facility to escort him to the Mayor's location in

the tower. Once there, Méndez-Ayala again tried to reason with the

Mayor, telling him "that he was doing things the wrong way . . . .

And he looked at me disdainfully, as if he could care less."

Possibly during this same discussion, or during a later detention

discussion (the sequence is unclear), Méndez-Ayala again asked the

Mayor his reason for detaining Comagro's employees. This time, the

Mayor revealed his frustration with the company:

And I told [the Mayor], well, listen now,
what's going on? What's the problem? What
have we done? And he told me that he was
really upset, that he had done everything to
work with us . . . and we were bringing up an
arbitration case. And he got really upset,
and he -- he said, just go. Just go. Just
go. Go to hell. And just leave.

It was then 11:30 a.m., and the Comagro employees had

been detained for about two hours. Shortly thereafter, Méndez-

Ayala, Santiago, and the Comagro workers were allowed to leave the

site. After being told that their tools would remain impounded,

Méndez-Ayala again objected, protesting to the Mayor that the

impounding was an "abuse of power" and that the subcontractors

would be unable to work elsewhere without their tools. The police

allowed workers to take personal tools, but several other tools, as

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well as a company car, remained in city possession until days

later.

Just as the detention was ending, Méndez-Matos arrived at

the project site. Méndez-Ayala had called his father thirty

minutes earlier, telling him that the Mayor had arrived with police

officers, bodyguards, and patrol cars, and that he himself had been

arrested and Comagro's equipment impounded. The situation, he

said, was "a mess," and he "didn't know what it was all about."

The "animosity and hostility of the[] police agents, and the mayor

himself" worried Méndez-Ayala, and he asked his father to stay away

from the project because "things look[] ugly here." The phone call

"enormously concerned" Méndez-Matos, who feared for his son's life.

He drove to the government center, bringing a camera.

Méndez-Matos parked some distance from the government

center and approached on foot. At the project site, he saw police

officers and a "whole bunch of patrol cars." Walking around the

project, Méndez-Matos began taking pictures, including several of

the patrol cars stationed outside the parking facility. A police

officer told him to stop, but Méndez-Matos "just went ahead and

walked on." As he continued around the outside of the project,

Méndez-Matos met Méndez-Ayala and Santiago. Méndez-Ayala described

his father as "really concerned and somewhat agitated," and asked

him to leave. The Mayor's "people," he believed, were "looking for

trouble. I was concerned they would beat [Méndez-Matos] and that

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I might be beaten up as well." Méndez-Matos refused to leave,

telling his son, "I'm not going to leave you here so that you can

get killed."

When the Mayor appeared with several officers, Méndez-

Matos approached him. As he did this, Méndez-Ayala said, the

police officers "gripped their holsters sort of as in a threat."

Afraid of the possibility that the Mayor's guards would injure his

father, Méndez-Ayala testified that he felt "impotent, flustered,

fearful." According to Méndez-Matos, the police officers "crowded

all around me, and I looked around, I saw one of them gripping his

firearm, and I felt fear." He described the confrontation as

follows:

[T]he mayor was coming towards me. And he was
there -- he was being followed by his body
guard and by another guard. And he came -- he
was coming over with a very bad demeanor, and
proffering dirty words. And I was very upset,
and I faced him, squared off with him. And I
was very upset about everything, because of
the way they had treated my people and the way
they had treated my son, and in the face of
this abuse of power, and the manner in which
he had treated my son. And that's when my son
came over to me and said -- because you see
the guards had surrounded me . . . and my son
said, look, dad, just leave . . . because what
they want to do is give you any number of
blows. They want to club you. . . . I
withdrew.

Méndez-Matos left the project site but remained in Guaynabo. Even

after he left, he said, he feared for his son's life. The Mayor

was doing something "entirely illogical," and "when someone does

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something as illogical as that raid, then one can expect anything."

At trial, in March 2007, Méndez-Ayala testified that he feared

reprisal and was "still scared. . . . Anything can happen . . .

with these people who have so much influence and more so now."4

II.

On June 6, 2005, Méndez-Matos, his wife Margarita Ayala-

Rivera, their conjugal partnership, his son Méndez-Ayala, and

Comagro brought suit against Mayor O'Neill, his wife Alba Alvelo de

O'Neill, their conjugal partnership, the Muncipality of Guaynabo,

and several unnamed police officers, their wives, and conjugal

partnerships.5 In their complaint, plaintiffs asserted a violation

of their federal constitutional rights pursuant to 42 U.S.C. § 1983

and a violation of their civil rights guaranteed by Article 1802 of

the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141. They

sought compensatory damages under both statutes for pain and

suffering, and punitive damages under section 1983 for the

4
The conflict between Comagro and Mayor O'Neill continued in
the days that immediately followed November 26. Pursuant to a deal
brokered by attorneys for the city and Comagro, Méndez-Matos
returned to the project on Monday, November 29, to obtain video
footage of the building's conditions. The Mayor, accompanied by
police officers, intercepted Méndez-Matos and removed him from the
building. After further negotiation, Méndez-Matos returned to the
project on Tuesday, November 30, again to shoot a video; again
Mayor O'Neill attempted to prevent the taping. Only after
intervention by the Vice Mayor and attorneys for both parties was
the videotaping allowed to proceed.
5
In what follows, we will any omit reference to claims
brought by or against spouses and conjugal partnerships.

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defendants' reckless disregard of their federally protected rights.

Upon defendants' motion to dismiss, the district court dismissed

with prejudice the section 1983 claims advanced by Méndez-Matos, as

well as Méndez-Ayala's section 1983 claims against the municipal

police officers.

The court held a jury trial on the section 1983 claims

brought by Méndez-Ayala and Comagro, as well as the Article 1802

claims brought by Méndez-Ayala, Méndez-Matos, and Comagro. At the

close of evidence, the parties agreed to dismiss Comagro's claims.

On March 28, 2007, the jury found the defendants liable on Méndez-

Ayala's section 1983 and Article 1802 claims, awarding him $35,000

in compensatory damages against the defendants jointly and

severally, and $350,000 in punitive damages against Mayor O'Neill

personally on the section 1983 claim. It found the defendants

liable on Méndez-Matos's Article 1802 claim, and awarded him

$50,000 in compensatory damages against the defendants jointly and

severally.

Defendants filed post-trial motions seeking judgment as

a matter of law and, in the alternative, remittitur of the damage

awards or a new trial. See Fed. R. Civ. P. 50(b), 59(a).

Concluding that the evidence presented was sufficient to sustain

the liability findings and compensatory damages, but that the

punitive damage award violated due process limits, the court

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reduced the punitive damage award to $35,000 and denied the balance

of the defendants' motions.

In his appeal, Méndez-Ayala contends that the district

court erred in finding that the punitive damage award of $350,000

violated the Due Process Clause. In their cross-appeal, Mayor

O'Neill and Guaynabo argue that plaintiffs failed to surmount the

threshold requirement for punitive damages under section 1983, that

the compensatory damage award was grossly excessive, and that

Méndez-Matos did not sufficiently prove the mental distress

required to recover under Article 1802. We consider first the size

of Méndez-Ayala's compensatory damage award, then the punitive

damages issues raised by the section 1983 claim, and finally the

judgment and award for Méndez-Matos under Article 1802.

III.

In their cross-appeal, Mayor O'Neill and Guaynabo assert

two challenges to the section 1983 judgment entered against them.6

First, they argue that the evidence was insufficient to support a

verdict in favor of Méndez-Ayala. Second, they argue that the

district court erred in denying their motion for a new trial or

remittitur on the ground that the $35,000 compensatory damage award

was excessive. However, only the second of these arguments is

6
The compensatory damages challenged here were awarded by the
jury under both section 1983 and Article 1802. However, in their
brief and at oral argument, counsel for cross-appellants treat the
award as if it were under section 1983 alone.

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developed in their briefs. Moreover, in response to questioning at

oral argument, counsel for cross-appellants conceded the issue of

liability. For these reasons, we will consider the challenge to

the size of the compensatory damages award only.

Where, as here, defendants have timely moved for a new

trial or remittitur under Federal Rule of Civil Procedure 59, "our

inquiry is limited to determining whether the trial court abused

its discretion in refusing to set aside the verdict as excessive."

Borges Colon v. Roman-Abreu, 438 F.3d 1, 20 (1st Cir. 2006)

(internal quotation marks and citation omitted). A jury's award of

compensatory damages will be overturned only if it 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." Correa, 69 F.3d at 1197 (internal quotation marks and

citation omitted).

We agree with the district court that cross-appellants

failed to make the required showing. Several considerations

support the size of the jury's award. The Mayor assembled a large,

armed force of police officers and bodyguards. While in command of

this force the Mayor acted in irrational and unpredictable ways,

causing anxiety to Méndez-Ayala. For example, he used his officers

to surround and threaten Méndez-Matos, a confrontation witnessed by

his son, Méndez-Ayala, and described as being nearly violent and

causing him to feel "impotent, flustered, fearful." The Mayor's

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special influence and authority further magnified these feelings.

Méndez-Ayala testified at trial that he remained anxious about the

possibility of reprisals against his family and friends.7 In light

of this testimony, cross-appellants' assertion that Méndez-Ayala

could not have suffered any distress because he had the equanimity

to negotiate with the Mayor during the confrontation is simply

unpersuasive. Méndez-Ayala told the jury that the arrest felt like

it lasted "a week."

Cross-appellants also argue that the award was grossly

excessive because Méndez-Ayala failed to adduce expert testimony

about his emotional distress. A plaintiff does not need to present

expert testimony to recover damages for emotional distress caused

by the violation of his civil rights. Bolden v. Se. Penn. Transp.

Auth., 21 F.3d 29, 34 (3d Cir. 1994) (noting the agreement of

"[a]ll of the courts of appeals that have expressly considered this

issue"). Nevertheless, cross-appellants argue that the failure to

present expert testimony is relevant to the amount of damages a

plaintiff may recover for emotional distress. For support, they

cite our decision in Koster v. Trans World Airlines, Inc., 181 F.3d

24, 35 (1st Cir. 1999) (holding that the absence of "medical or

psychiatric evidence" is relevant to determining whether the amount

7
Cross-appellants' assertion that Méndez-Ayala's fear of
reprisals was speculative misstates the significance of the
testimony. The compensatory damages award does not reflect the
likelihood that a reprisal may in fact occur, but the distress
Méndez-Ayala experienced worrying about the possibility.

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of an award for emotional distress is excessive). We do not

dispute that the absence of expert testimony is relevant to a claim

that an award of damages for emotional distress is grossly

excessive. However, the $35,000 award here was not grossly

excessive in light of the other evidence presented. As we have

discussed, the jury heard testimony that Méndez-Ayala experienced

considerable distress. Cf. id. at 36 (entering an award of

$250,000 for plaintiff who testified he felt anxious, had trouble

sleeping, had a bad vacation, and was less able to participate in

the lives of his children). We cannot conclude that the district

court abused its discretion in refusing to remit the compensatory

award.8

IV.

Punitive damage awards are available in a section 1983

action under limited circumstances. Carey v. Piphus, 435 U.S. 247,

257 n.11 (1978). First, as a threshold matter, the plaintiff must

prove that the defendant intentionally violated his federally

protected rights, or acted with reckless indifference toward those

rights. Smith v. Wade, 461 U.S. 30, 56 (1983); Powell v.

Alexander, 391 F.3d 1, 15 (1st Cir. 2004). Second, even if this

threshold is met, the Due Process Clause of the Fourteenth

8
Cross-appellants' argument that the compensatory award was
grossly excessive because Méndez-Ayala failed to mitigate his
damages by seeking medical attention is waived because the argument
was insufficiently developed. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).

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Amendment limits the amount of punitive damages available,

prohibiting "grossly excessive" awards. State Farm Mut. Auto. Ins.

Co. v. Campbell, 538 U.S. 408, 416-17 (2003); BMW, 517 U.S. at 568.

We have regularly applied this due process limit to punitive damage

awards under federal law, particularly in section 1983 actions.

See, e.g., Bisbal-Ramos v. City of Mayagüez, 467 F.3d 16, 27 (1st

Cir. 2006) (section 1983); Davis v. Rennie, 264 F.3d 86, 116 (1st

Cir. 2001) (same); Romano v. U-Haul Intern., 233 F.3d 655, 672 (1st

Cir. 2000) (Title VII).

During the course of the trial, the district court ruled

that the federal right at issue in the section 1983 action was

Méndez-Ayala's Fourth Amendment right to be free of an arrest that

was not based on probable cause. Thus, the jury had to decide

whether the Mayor's detention of Méndez-Ayala at the government

center constituted an arrest, and if so, whether the Mayor lacked

probable cause to make the arrest. The jury determined that the

Mayor did arrest Méndez-Ayala, and awarded punitive damages.9

These determinations implicate both of the limitations discussed

above. First, Mayor O'Neill argues in his cross-appeal that the

evidence at trial did not suffice to meet the threshold requirement

9
The Mayor does not challenge on appeal the jury's
determination that Méndez-Ayala was arrested on orders of the
Mayor, and that there was no probable cause to order the arrest.
Instead, as we explain, he argues that the evidence does not
support the jury's finding that he acted with reckless indifference
to Méndez-Ayala's constitutional rights.

-21-
of an intentional or reckless violation of federally protected

rights. Second, Méndez-Ayala argues in his appeal that the

punitive damage award was appropriate, and that the district court

erred in holding that the jury's original award of $350,000

violated due process limits.10 We consider first the argument about

threshold requirements raised in the cross-appeal.

A. Threshold Requirement for Punitive Damages

Because it is a question of law, we review de novo

whether the evidence presented at trial sufficed to meet the

threshold requirement for punitive damages under section 1983.

Powell, 391 F.3d at 15 (citing Marcano-Rivera v. Pueblo Int'l,

Inc., 232 F.3d 245, 254 (1st Cir. 2000)); Iacobucci v. Boulter, 193

F.3d 14, 25 (1st Cir. 1999).

In Smith v. Wade, the Supreme Court held that punitive

damages were proper in a section 1983 suit only "when the

defendant's conduct is shown to be motivated by evil motive or

intent, or when it involves reckless or callous indifference to the

federally protected rights of others." 461 U.S. at 56. The Court

later gave this language a crucial gloss in Kolstad v. Am. Dental

Ass'n, 527 U.S. 526 (1999), where it interpreted a provision of

Title VII whose language was modeled on Smith. That provision

10
Mayor O'Neill does not argue that the reduced $35,000
punitive damage award itself violated due process limits. Instead,
he asks us to affirm the judgment of the district court if we find
that the threshold requirement for punitive damages is met.

-22-
permitted punitive damages only in cases where the defendant acted

"with malice or reckless indifference to . . . federally protected

rights." Id. at 534. Noting that Congress had plainly intended

this language to limit punitive damages to a subset of acts of

intentional discrimination, the Court concluded that to obtain such

damages a plaintiff would have to prove something more than

intentional conduct alone. The plaintiff would be required to

prove that the defendant "discriminate[d] in the face of a

perceived risk that its actions [would] violate federal law." Id.

at 536.

We have long applied the Kolstad interpretation of

"reckless indifference" under Title VII to section 1983. See

Iacobucci, 193 F.3d at 26 n.7 (noting the close connection between

Title VII and Smith). Under that approach,

[t]he special showing needed to trigger
eligibility for punitive damages, which the
Smith Court called "evil motive" or "reckless
or callous indifference," pertains to the
defendant's "knowledge that [he] may be acting
in violation of federal law . . . . Thus, the
standard requires proof that the defendant
"acted in the face of a perceived risk that
[his] actions [would] violate federal law."

Id. at 26 (citations omitted); see also Casillas-Diaz v. Palau, 463

F.3d 77, 84 (1st Cir. 2006); DiMarco-Zappa v. Cabanillas, 238 F.3d

25, 37-38 (1st Cir. 2001). In describing this approach, we noted

the difference between the state of mind necessary for liability

and the state of mind necessary for punitive damages:

-23-
 The state of mind required to make out a
cognizable section 1983 claim (at least one
grounded in false arrest) differs importantly
from that required to justify punitive
damages. The former requirement relates only
to conduct, not to the consequence; that is,
it entails an intent to do the act, not to
effect a civil rights violation.

Iacobucci, 193 F.3d at 26.

In Iacobucci, we noted that proof of a defendant's

awareness of the risk of violating federal law may be

circumstantial. See Iacobucci, 193 F.3d at 27. Several different

kinds of circumstances may support a conclusion that the defendant

was aware of this risk. For example, we have observed that if a

defendant's conduct is "egregious or outrageous," it may suggest an

awareness of its illegality. See, e.g., Powell, 391 F.3d at 19

(citing Kolstad, 527 U.S. at 536). The existence of an extensive

body of federal law on a particular issue also may suggest that the

defendant must have been aware of the risk of violating that law.

DiMarco-Zappa, 238 F.3d at 38. And we upheld an award of punitive

damages against a city attorney, reasoning that in light of her

occupation she must have been aware that her conduct risked

violating the plaintiff's First Amendment rights. Powell, 391 F.3d

at 20.

Mayor O'Neill makes two principal arguments in support of

his contention that Méndez-Ayala failed to prove that he acted in

the face of a perceived risk that his actions would violate federal

law. First, he argues that the evidence only supports the view

-24-
that he was unfamiliar with the contract documents and believed

that Comagro should not have been present at the government center

on November 26; therefore, he perceived no risk that by arresting

Méndez-Ayala he might violate federal law. Second, he argues that

the evidence only supports the view that his decision to arrest

Méndez-Ayala was so sudden he could not possibly have perceived

beforehand that it might violate federal law. We consider these

arguments in turn.

1. The Mayor's lack of knowledge about the contractual
relationship between Guaynabo and Comagro

The Mayor says that he was unfamiliar with the precise

terms of the agreement between Guaynabo and Comagro. He asserts

that he never saw the construction contract, the AIA agreement, the

certificate of substantial completion, the attached punch list, the

November 15 Dávila memo, or the November 18 default letter. He

knew only that Comagro and the city were embroiled in a long

dispute, that the city had ended the construction contract with the

default letter, and that Comagro employees "were not to do any kind

of work" on the government center. He insists, therefore, that he

was only being "observant" when he investigated the open parking

facility at the government center and detained the Comagro

employees while police searched the building. He was unaware that

the employees might be rightfully present there.

The Mayor's argument does not account for the standard of

review, which requires us to view the evidence in the light most

-25-
hospitable to the jury's verdict. See Correa, 69 F.3d at 1188.

Evaluated by that standard, the evidence would permit a reasonable

jury to conclude that the Mayor acted in the face of a perceived

risk that by arresting Méndez-Ayala he might violate Méndez-Ayala's

constitutional right to be free of an arrest not based on probable

cause. The Mayor was aware of the constitutional constraints on

his power of arrest. He offered testimony regarding his role as

head of the municipal police force. When he insisted that he had

not required a warrant to arrest Méndez-Ayala, he indicated an

awareness of arrest standards. Even if he lacked a precise

understanding of the concept of probable cause, the jury could

conclude that the Mayor understood that he could not order an

arrest if Méndez-Ayala was lawfully present on the premises.

The jury could also reasonably conclude that the Mayor,

despite some testimony of his to the contrary, understood that

Méndez-Ayala and Comagro's employees might be rightfully present at

the building. Most significantly, the Mayor told the jury that he

knew Guaynabo did not yet have possession of the government center

on November 26. He also testified that his advisors had discussed

the default letter with him and that he knew what the letter stated

by November 26, the day of the detainment.11 The default letter,

11
The Mayor offered conflicting testimony on this point at
trial:

COUNSEL FOR PLAINTIFFS: So you really don't know the
terms of it, of the [default] letter?

-26-
which was admitted into evidence, demanded immediate possession of

the building, yet sections of the letter reasonably could have been

construed to require Comagro employees to be present at the

project, fixing identified construction deficiencies.12 On this

record the jury reasonably could have inferred that the Mayor

understood that Comagro's employees might be rightfully present at

the government center on November 26, and thus that he had no

lawful basis for arresting Méndez-Ayala. Moreover, the jury heard

other testimony which reasonably suggested another reason

THE MAYOR: That is correct.
COUNSEL FOR PLAINTIFFS: It's been stipulated that
the letter was received by Comagro on the 24th of
November, 2004. As of the 24th of November, 2004, Mr.
O'Neill, did you know what the default letter stated?
THE MAYOR: No, I did not know what the letter
stated.
COUNSEL FOR PLAINTIFFS: And on October -- November
26, 2004, did you know what the default letter stated?
THE MAYOR: Yes. It was discussed with the legal
division and with the project inspector and supervision.
COUNSEL FOR PLAINTIFFS: Okay. So you --
THE MAYOR: And it was discussed with me.
COUNSEL FOR PLAINTIFFS: So you discussed it on the
25th of November? . . .
COUNSEL FOR DEFENDANTS: Objection. That's not the
testimony, your Honor.
COUNSEL FOR PLAINTIFFS: That's my question . . . .
Would you please let me ask the question?
THE COURT: He answered that. He answered that. He
discussed it with his staff, I guess. . . .
COUNSEL: Did you discuss it on the 25th of November
with your staff? . . .
THE MAYOR: I'm sorry. We did not discuss the
contents to any letter.
12
In fact, this is what the Comagro employees were doing at
the government center on November 26th: fixing identified
deficiencies to prepare the project for delivery.

-27-
altogether for the arrest. When asked by Méndez-Ayala why he had

been arrested, the Mayor said he was upset "because he had done

everything to work with us . . . and we were bringing up an

arbitration case." A jury could reasonably conclude that the

Mayor's pique at Comagro's temerity in seeking to arbitrate its

contract dispute was the motivating cause that led him to arrest

Méndez-Ayala and hold him in custody at the site for two hours,

despite his awareness that Méndez-Ayala might be lawfully present

at the site. This attitude of the Mayor demonstrated a conscious

indifference to the possibility that the arrest would violate

Méndez-Ayala's constitutional rights. See Iacobucci, 193 F.3d at

26.

2. The Mayor's sudden decision to arrest

Mayor O'Neill also argues that he could not possibly have

perceived a risk of violating federal law because he decided to

arrest Méndez-Ayala with little or no calculation. For support,

the Mayor points to our decision in Iacobucci, 193 F.3d at 27,

where we held that the plaintiff had not met the threshold

requirement for a punitive damage award. There we found it

dispositive that the defendant, a police officer, had made a

"split-second decision" to arrest the plaintiff. Such a decision,

we observed, does not "lend itself to the inference that [the

officer] acted with an evil motive or a conscious awareness that

the arrest might violate [the plaintiff's] civil rights." Id. at

-28-
26. Punitive damages should not lie where the evidence showed only

"an exasperated police officer, acting in the heat of the moment,

[who] made an objectively unreasonable mistake." Id. at 26-27.

Seeking to analogize this case to Iacobucci, Mayor

O'Neill points to Méndez-Ayala's testimony that the Mayor's

decision to arrest the Comagro employees occurred "[a]ll of a

sudden," or "immediately." The Mayor interprets this testimony to

mean that he, like the police officer in Iacobucci, made a "split-

second" decision, "in the heat of the moment," and therefore could

not have perceived a risk that his conduct would violate Méndez-

Ayala's federal rights.

Iacobucci does not stand for the proposition that a

change of decision made without prior warning, in a short period of

time, is always immune from punitive damages under section 1983.

Such a rule would exempt a large class of conduct from punitive

damages, including conduct for which we have previously affirmed

awards. See, e.g., Davis, 264 F.3d at 115 (affirming an award of

punitive damages against a nurse who, during an altercation,

punched a patient in the head). Iacobucci involved a rapidly

developing situation which demanded an immediate response. See

Iacobucci, 193 F.3d at 26. The plaintiff, Iacobucci, had insisted

on filming a meeting that city officials insisted should not be

filmed. His conduct forced the defendant officer to act quickly,

"in the heat of the moment," "to defuse a contentious situation."

-29-
Id. Because he was forced to confront an emergency, the defendant

did not have an opportunity to consider the range of risks his

conduct created.

Taken in the light most favorable to the jury's verdict,

the facts in this case do not fit the Iacobucci pattern. The Mayor

was not called to the location by a distressed party seeking

assistance or protection. He was uncertain about the right of the

Comagro employees to be on the site.13 Moreover, before the police

arrived, the Mayor had an opportunity to contemplate the legal

consequences of different courses of action. After asking the

Comagro employees to leave the building, no exigency presented

itself that required him to decide then to arrest those employees.

There was no need to act precipitously. Méndez-Ayala's question to

the Mayor -- "And I said, well, hey, wait a minute. What's going

on?" -- was not provocative. The Mayor's conduct and his

inflammatory, profane language indicate that he simply lost control

of his temper and his judgment. His statement to Méndez-Ayala that

he was already angry at Comagro because it sought arbitration and

Méndez-Ayala's claim that the Mayor was "looking for trouble" could

have reasonably suggested to a jury that the Mayor was not acting

13
As our discussion in section IV(A)(1), supra, shows, the
facts as viewed in the light most hospitable to the verdict do not
support the Mayor's contention that he believed a criminal trespass
was occurring. Instead, the evidence supports the view that the
Mayor was uncertain about the right of the Comagro employees to be
present on the site.

-30-
"in the heat of the moment," but was seeking retaliation. Then,

instead of immediately releasing Méndez-Ayala and the Comagro

employees, the Mayor kept them under arrest for about two hours,

when he had an ample opportunity to contemplate the consequences of

his conduct. Iacobucci does not insulate such conduct from

punishment. We reject the contention in the cross-appeal that the

threshold requirement for an award of punitive damages was not met.

B. Due Process Limits on Punitive Damages

We review de novo the district court's determination of

the constitutionality of the jury's punitive damages award. Cooper

Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436

(2001); Davis, 264 F.3d at 116. De novo review is appropriate here

because a punitive award implicates constitutional questions of due

process. See Cooper Indus., 532 U.S. at 435. If we find an award

"grossly excessive," we may ascertain the amount of punitive award

that is appropriate and order the district court to enter judgment

in such amount. Bisbal-Ramos, 467 F.3d at 27.

Where properly imposed, punitive damages further

legitimate state interests in the punishment and deterrence of

unlawful conduct. Philip Morris USA v. Williams, 549 U.S. 346, 352

(2007). An award "grossly excessive" with respect to those

interests violates the Due Process Clause, which requires that an

individual have fair notice of the penalty to which his conduct

could expose him. BMW, 517 U.S. at 574. In BMW, the Supreme Court

-31-
provided three guideposts for determining whether a punitive

damages award was "grossly excessive" in this sense: (1) the degree

of reprehensibility of the defendant's misconduct; (2) the

disparity between the actual or potential harm suffered by the

plaintiff and the punitive damages award; and (3) the difference

between the punitive damages awarded by the jury and the civil

penalties authorized or imposed in comparable cases. Id. at 575;

see also State Farm, 538 U.S. at 418.

In his appeal, Méndez-Ayala urges us to vacate the order

of the district court reducing the punitive damages award from

$350,000 to $35,000. He argues that the jury's award did not

grossly exceed an amount necessary to punish Mayor O'Neill and

deter him from similar conduct in the future.

1. Degree of Reprehensibility

As the Supreme Court has repeatedly stated, and as we

have long recognized, the degree of reprehensibility is the most

important guidepost in the BMW test. State Farm, 538 U.S. at 419;

Casillas-Diaz, 463 F.3d at 85; Davis, 264 F.3d at 116. In

measuring the reprehensibility of a defendant's conduct, the

Supreme Court has instructed us to consider whether:

the harm caused was physical as opposed to
economic; the tortious conduct evinced an
indifference to or a reckless disregard of the
health or safety of others; the target of the
conduct had financial vulnerability; the
conduct involved repeated actions or was an
isolated incident; and the harm was the result

-32-
 of intentional malice, trickery, or deceit, or
mere accident.

State Farm, 538 U.S. at 419 (citing BMW, 517 U.S. at 576-77).

We begin with harm, which is especially significant in

the determination of reprehensibility. Conduct involving "violence

or the threat of violence" is generally regarded as being more

serious than nonviolent conduct. BMW, 517 U.S. at 575-76 (citing

Solem v. Helm, 463 U.S. 277, 292-93 (1983)). Actual physical

injury is not essential. See id. Conduct imposing a significant

threat of violence may be considered reprehensible, even if it does

not result in actual injury. Romanski v. Detroit Entm't, LLC, 428

F.3d 629, 643-44, 649 (6th Cir. 2006) (awarding punitive damages of

$600,000 in a section 1983 suit for false arrest where there was no

violence, but "the threat of physical force was apparent"); Lee v.

Edwards, 101 F.3d 805, 813 (2nd Cir. 1996) (awarding punitive

damages of $75,000 for malicious prosecution). A threat of

violence may be especially serious if a state official creates it

by using his authority. See Lee, 101 F.3d at 810.

Although Méndez-Ayala suffered no physical injuries, the

Mayor's conduct created a real and serious threat of violence. He

used armed police officers to detain the employees, impound their

property, and destroy city property by running their vehicles

through wet cement. Accompanied by body guards, the Mayor

continuously inflamed the situation by verbally accosting Comagro

employees, including Méndez-Ayala. On multiple occasions, he told

-33-
them that their work was "shit," "no good," "junk," and that they

should "go to hell" and "jerk off." Méndez-Ayala testified that

the Mayor was "looking for trouble." After enduring these insults

Méndez-Matos "squared off" with the Mayor and was surrounded by

armed officers. During this confrontation, Méndez-Ayala said, he

was worried the guards would beat up both him and his father. By

conducting himself in this way, the Mayor needlessly transformed a

business dispute into a dangerous confrontation.

The same facts also speak to the second factor identified

by the Supreme Court: whether the defendant's conduct showed

"reckless disregard of the . . . safety of others." See State

Farm, 538 U.S. at 419. The Mayor's decision to angrily confront

and detain the Comagro employees showed little concern for the

danger this conduct might create. His explanation that he simply

"lost his cool" does not mitigate his culpability for the dangerous

situation he created.

At the same time, consideration of the other factors

identified by the Supreme Court lessens the reprehensibility of the

Mayor's conduct. It was undisputed that before the Mayor arrested

the Comagro employees, he told them to leave. If Méndez-Ayala had

left the facility immediately instead of questioning the Mayor's

actions, the detention might have been avoided. Fortunately, no

one was injured as a result of the Mayor's actions. One of the

officers assisted Méndez-Ayala during the detainment by escorting

-34-
him to the Mayor. The Mayor himself ultimately responded to

Méndez-Ayala's requests by releasing the workers and returning

their personal equipment after two hours.

Other reprehensibility factors identified by the Supreme

Court play no role here. For example, no evidence suggested that

the target of the Mayor's conduct, Méndez-Ayala, was "financially

vulnerab[le]." The arrest was a one-time occurrence. Nor does the

evidence suggest that the Mayor acted with "intentional malice,

trickery, or deceit."

In sum, there is a disconnect between the degree of

reprehensibility of the Mayor's conduct and the jury's large

punitive damages award. While the Mayor created a serious risk of

violence, the absence of any actual injury, his initial request

that the employees leave, and the relatively short duration of the

arrest and speedy return of equipment lessen the reprehensibility

of his conduct. The absence of other factors identified by the

Supreme Court, such as vulnerability, also lessens the degree of

reprehensibility.

2. Disparity between harm or potential harm and punitive
damages

Under the second BMW guidepost, we consider whether

punitive damages bear a reasonable relationship to the harm that

the defendant's conduct caused or is likely to have caused. BMW,

-35-
517 U.S. at 581. While the ratio of punitive damages to

compensatory damages is relevant to this inquiry, the Supreme Court

has long declined to "impose a bright-line ratio which a punitive

damages award cannot exceed." State Farm, 538 U.S. at 424.

Nevertheless, the Court has noted that "in practice, few awards

exceeding a single-digit ratio between punitive and compensatory

damages, to a significant degree, will satisfy due process."14 Id.

at 425. However, the focus of our inquiry is not the ratio itself,

but whether "the measure of punishment is both reasonable and

proportionate to the amount of harm to the plaintiff and to the

general damages recovered." Id. at 426.

A punitive award many times the size of the compensatory

award may be "reasonable and proportionate" in certain

circumstances. For example, "particularly egregious conduct that

results in relatively low actual damages can support a higher ratio

than conduct that is less reprehensible." Romano, 233 F.3d at 655

(internal quotation marks and citation omitted); see BMW, 517 U.S.

at 582. We do not have that situation here. Although the Mayor's

conduct was reprehensible, it was not "particularly egregious" in

comparison to defendants' conduct in other cases supporting

substantial punitive awards. See, e.g., Davis, 264 F.3d at 91, 117

14
In Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), the
Court established a 1:1 ratio of punitive to compensatory damages
under federal maritime law. By its own terms, however, the rule
does not apply here. See id. at 2626. ("Today's enquiry differs
from due process review . . . .").

-36-
(repeated punching of mental patient); Casillas-Diaz, 463 F.3d at

82 (suspect beaten unconscious by police); Romano, 233 F.3d at 673

(intentional violation of anti-discrimination law). The Mayor was

not violent and he caused no physical injury. Before detaining the

employees he asked them to leave the premises. The detention

itself lasted two hours. The evidence would not support a

conclusion that the Mayor intentionally violated a constitutional

right, as did the defendant in Romano. See Romano, 233 F.3d at

669.

Conversely, where the compensatory award is substantial,

a ratio of punitive-to-compensatory damages larger than one-to-one

may be unreasonable. State Farm, 538 U.S. at 425 ("When

compensatory damages are substantial, then a lesser ratio, perhaps

only equal to compensatory damages, can reach the outermost limit

of the due process guarantee.") In this case, although Méndez-

Ayala's compensatory damages award was not excessive, it did amply

compensate him for the mental distress resulting from his

confrontation with the Mayor. Although not the sole determinant in

the analysis, this fact supports the one-to-one ratio between the

compensatory damages awarded to Méndez-Ayala and a $35,000 punitive

damages award.15

15
Consideration of the harm the Mayor might have caused does
not change our conclusion. While the jury may consider potential
harm in its award of punitive damages, TXO Prod. Corp. v. Alliance
Res. Corp., 509 U.S. 443, 459-60 (1993), the evidence suggests that
it was Méndez-Matos, not Méndez-Ayala, who faced the most

-37-
 3. Civil penalties in comparable cases

Under the final BMW guidepost, we consider the difference

between the punitive damages awarded by the jury and the civil

penalties authorized or imposed in comparable cases.16 State Farm,

538 U.S. at 428. In discussing this guidepost, the Supreme Court

has asked reviewing courts to accord deference to legislative

judgment about the appropriate sanction for the conduct at issue.

BMW, 517 U.S. at 583. In the case of section 1983, however,

Congress did not address damage awards; therefore, we compare the

present award with awards we have permitted in similar section 1983

suits. Davis, 264 F.3d at 117 (citing Zimmerman, 262 F.3d at 82).

While we look first to authorities within our own circuit, we are

not confined to such sources. See BMW, 517 U.S. at 584

significant risk of serious physical injury when he was surrounded
by the Mayor's armed guards. Even if we assume that Méndez-Ayala
might have suffered some physical injury, or greater mental
distress, this potential does not alter our view that there was too
great a disparity here between the harm or potential harm and the
punitive damages.
16
The Supreme Court previously directed us to compare the
punitive award to criminal penalties as well as civil penalties.
See BMW, 517 U.S. at 583. More recently, however, the Court has
stated that criminal penalties have "less utility" in comparing the
size of awards under the third BMW guidepost. State Farm, 538 U.S.
at 428. The present case demonstrates at least part of the
difficulty. The penalty for "aggravated restraint of liberty"
under the Puerto Rico Penal Code is imprisonment of no more than
five years and a fine no more than $3,000. P.R. Laws Ann. tit. 33,
§ 4172. While the applicable fine is far smaller than the punitive
damages awarded in this case, five years of imprisonment is a very
serious penalty. See BMW, 517 U.S. at 583 (noting the significance
of imprisonment in this context).

-38-
(considering statutes from various jurisdictions); Romanski, 428

F.3d at 646, 648 (looking outside circuit case law).

Although Méndez-Ayala argues that this Court has upheld

far larger punitive awards, the facts in those cases differ in

critical respects from the facts here. For example, we have

affirmed large punitive awards where the plaintiff suffered

significant physical injury. In Davis, where we affirmed a

punitive damages award of over $1 million, the plaintiff was thrown

to the ground and repeatedly punched in the head. Davis, 264 F.3d

at 94; see also Casillas-Diaz, 463 F.3d at 86. Where we have

approved large awards in the absence of violence, the conduct at

issue was typically intentional or malicious, such as

discrimination. See, e.g., Rivera-Torres v. Ortiz Velez, 341 F.3d

86, 102 (1st Cir. 2003) (affirming a punitive award of $250,000 for

politically motivated discrimination); Zimmerman, 262 F.3d at 83-84

(affirming an award of $400,000 for violations of state

discrimination law); Romano, 233 F.3d at 673 (affirming an award of

$285,000 for violations of Title VII and state law).

In contrast, our case law provides no guidance for

determining what penalty is appropriate for engaging in a non-

violent violation of the Fourth Amendment. Outside our circuit,

similar cases have resulted in punitive awards under $100,000.

See, e.g., Dean v. Olibas, 129 F.3d 1001, 1007 (8th Cir. 1997)

(affirming an award of $70,000 for malicious prosecution); Lee, 101

-39-
F.3d at 813 (reducing a punitive award from $200,000 to $75,000 for

malicious prosecution). The only case upholding a substantially

larger punitive award for a non-violent violation of Fourth

Amendment rights, Romanski, 428 F.3d at 632, involved malicious

conduct not present here.

4. Conclusion

After applying the BMW guideposts, we agree with the

district court that the jury's punitive damages award of $350,000

grossly exceeded what was necessary to punish and deter the Mayor's

conduct. See BMW, 517 U.S. at 587. Because the Mayor lacked fair

notice that his conduct could expose him to a penalty of this

magnitude, we find that the jury's punitive award violates due

process limits.

When faced with a case where a punitive damages award is

unconstitutionally excessive, but some punitive damages are

warranted, we may ascertain the appropriate amount and order the

district court to enter judgment in such amount. Bisbal-Ramos, 467

F.3d at 27. We agree with the district court that a punitive award

of no more than $35,000 is permissible in this case, and we

therefore affirm that award. This award adequately reflects the

degree of reprehensibility of the Mayor's conduct. Given the

nature of the harm and the adequacy of the jury's compensatory

damages award, there is no justification for a great disparity

between the compensatory and punitive awards. The award of $35,000

-40-
is also consistent with the awards upheld in similar cases. In

sum, the same reasons that persuaded us that the jury's award of

$350,000 violated due process persuade us that an award of $35,000

comports with due process.

V.

Finally, Mayor O'Neill and Guaynabo cross-appeal the

jury's award of $50,000 for Méndez-Matos under his pendant state

law claim pursuant to Article 1802 of the Puerto Rico Civil Code.

Again it is unclear whether they argue that the evidence is

insufficient to support a judgment under Article 1802, or that the

compensatory award is grossly excessive. Since it makes no

difference in the outcome, we address both arguments.

A. Liability under Article 1802

We review de novo the district court's denial of a motion

for judgment as a matter of law. Bisbal-Ramos, 467 F.3d at 22.

The evidence is insufficient to support the jury's verdict if,

viewing the evidence in the light most favorable to the verdict, a

rational jury could not have found in favor of the prevailing

party. Id.

Article 1802 of the Puerto Rico Civil Code states that

"[a] person who by act or omission causes damage to another through

fault or negligence shall be obliged to repair the damage so done."

P.R. Laws Ann. tit. 31, § 5141. As the Puerto Rico Supreme Court

has "repeatedly recognized," individuals who suffer distress

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because a relative or loved one is tortiously injured have a cause

of action under Article 1802 against the tortfeasor. Santini

Rivera v. Serv Air, Inc., 1994 P.R.-Eng 909,527 (P.R. 1994), No.

RE-93-232, 1994 WL 909527 (P.R. Sept. 12, 1984). To prevail on

such a theory, a plaintiff must prove (1) that he has suffered

emotional harm, (2) that this harm was caused by the tortious

conduct of the defendant toward the plaintiff's relative or loved

one, and (3) that the defendant's conduct was tortious or wrongful.

See id. The cause of action is derivative and depends on the

viability of the underlying claim of the relative or loved one.

Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 12-13 (1st

Cir. 2007).

In their cross-appeal, Mayor O'Neill and Guaynabo

acknowledge that Puerto Rico law recognizes a cause of action for

individuals in Méndez-Matos's situation, but argue that it requires

proof of greater emotional distress than he established. Pointing

in particular to Serrano v. Nicholson Nursery, Inc., 844 F. Supp.

73 (D.P.R. 1994), Reyes v. Eastern Airlines, Inc., 528 F. Supp. 765

(D.P.R. 1981), and Hernández v. Fournier, 80 P.R. Dec. 94 (P.R.

1957), they assert that under Puerto Rico law, an individual must

prove "deep moral suffering and anguish," not merely a "passing

suffering," to recover for tortious injury to relatives or loved

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ones.17 In contrast, they argue, testimony at trial established

only that Méndez-Matos was momentarily angry or frightened.

We do not decide if Puerto Rico law makes the distinction

advanced by the cross-appellants. Instead, we assume that Puerto

Rico requires more than proof of "passing suffering" to recover for

tortious injury to relatives, and conclude that even on the

standard the cross-appellants suggest, a rational jury could have

found for Méndez-Matos on the evidence introduced at trial.

Viewed in the light most favorable to the verdict, the

testimony offered at trial established the depth and duration of

Méndez-Matos's emotional distress. Méndez-Matos told the jury that

he feared for his son's life after receiving a phone call from him,

explaining that he had been detained by the Mayor and "his

escorts." During that call, Méndez-Ayala told his father that

"things looked ugly," and asked him not to come. Méndez-Matos came

anyway, and when he arrived appeared "really concerned." He was so

upset about the treatment of his son, he confronted the Mayor and

his armed guards, who surrounded him and gripped their weapons.

Méndez-Ayala managed to call his father off, but Méndez-Matos was

concerned that the Mayor's conduct was so "illogical," anything

might happen to his son. He initially refused his son's entreaty

17
Although Méndez-Matos was directly involved in the events
at the government center, his claim under Article 1802 depends on
the emotional distress he suffered because of the arrest of his
son.

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to leave, saying "I'm not going to leave you here so you can get

killed." Even after he left the government center, Méndez-Matos

said, he feared for his son's life. In light of this testimony, it

was not unreasonable for the jury to conclude that Méndez-Matos met

the standard of proof argued by the cross-appellants.

B. Excessive compensatory award

Because cross-appellants timely moved below for a new

trial or remittitur, we review for abuse of discretion the district

court's decision not to set aside the award as excessive. Borges

Colon, 438 F.3d at 20. We overturn the jury's award only if it 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." Correa, 69 F.3d at 1197.

As we have seen, the jury heard ample evidence of the

distress Méndez-Matos experienced because of the Mayor's conduct,

including his "enormous[] concern[]" after receiving Méndez-Ayala's

phone call, his anxiety during the confrontation with the Mayor,

and his continuing fear for his son's well-being after leaving the

government center. The district court did not abuse its discretion

in concluding that the record contained sufficient evidence to

sustain the jury's $50,000 award.

Affirmed.

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