concurring in part and dissenting in part:
I concur in the majority opinion except for the part of the opinion that holds that the district court must award punitive damages in this case; as to that part of the opinion, I respectfully dissent. The majority says: “No matter how egregious the defendant’s conduct, whether to award pu-nitives is left to the fact finder.” The majority then proceeds to conclude that the defendant's conduct in this case is so egregious that the fact finder cannot be allowed to decline to award punitives. I agree that punitive damages are appropriate in this case, but that is not the issue; the issue is whether the trial court is to be reversed for declining to award punitive damages.
The Supreme Court has held that punitive damages may be awarded in a section 1983 case if the trier of fact finds that the defendant’s conduct is “motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). Justice Brennan, writing for the majority in Smith, stated:
[W]e are content to adopt the policy judgment of the common law — that reckless or callous disregard for the plaintiff’s rights, as well as intentional violations of federal law, should be sufficient to trigger a jury’s consideration of the appropriateness of punitive damages.
Id. at 51, 103 S.Ct. at 1637 (emphasis added). Smith argued, in Smith v. Wade, that the deterrent and punitive purposes of punitive damages are served only if the threshold for punitive damages is higher in every case than the standard for liability in the first instance. Rejecting that argument, Justice Brennan stated:
This argument incorrectly assumes that, simply because the instructions specified the same threshold of liability for punitive and compensatory damages, the two forms of damages were equally available to the plaintiff. The argument overlooks a key feature of punitive damages — that they are never awarded as of right, no matter how egregious the defendant’s conduct. “If the plaintiff proves sufficiently serious misconduct on the defendant’s part, the question whether to award punitive damages is left to the jury, which may or may not make such an award.” D. Dobbs, Law of Remedies 204 (1973) (footnote omitted). Compensatory damages, by contrast, are mandatory; once liability is found, the jury is required to award compensatory damages in an amount appropriate to compensate the plaintiff for his loss. Hence, it is not entirely accurate to say that punitive and compensatory damages were awarded in this case on the same standard. To make its punitive award, the jury was required to find not only that Smith’s conduct met the recklessness threshold (a question of ultimate fact), but also that his conduct merited a punitive award of $5,000 in addition to the compensatory award (a discretionary moral judgment).
*676Id. at 51-52, 103 S.Ct. at 1638 (emphasis added).
The Smith Court’s statement that punitive damages are “never awarded as of right, no matter how egregious the defendant’s conduct” is unremarkable only because courts throughout this country have said the same thing for many, many years. The question is, what do courts mean when they say that punitive damages are never a matter of right. I think it clear that they mean that the fact finder may in all cases decline to award them. The only control generally recognized by appellate courts has been the ability to reduce excessive awards. In Punitive Damages Law and Practice, the authors state
due to the universal recognition of the broad discretion of a jury to determine whether to give or withhold punitive damages and when awarded, to determine the amount to be awarded, only one area of judicial control over the discretion has been recognized. This area of judicial control is over excessive punitive damage awards.
J. Ghiardi & J. Kircher, 1 Punitive Damages L. & Prac. § 5.39, at 60 (1987). The authors go on to state a jury’s refusal to award punitives, once properly instructed on the issue, will not be overturned. Id. § 18.01, at 1.
It is also clear, however, that the law in our circuit is to the contrary. Binding precedent in this circuit supports the notion that an appellate court may direct a fact finder to award punitive damages; one former fifth case and one eleventh circuit case so hold. These decisions have, to borrow Judge Godbold’s phrase, taken a “journey down the wrong road.” I digress briefly to discuss that journey.
In Gore v. Turner, 563 F.2d 159 (5th Cir.1977), cited by the majority, the court of appeals directed the district court to award punitive damages. It is in that case that our predecessor circuit discovered for the first time that it possessed the power to direct a fact finder to award punitive damages. The court cited no authority for the proposition that an appellate court can mandate an award of punitive damages, and indeed there was no federal authority to cite. No other court of appeals had ever said that it could reverse a fact finder for declining to award punitive damages. The court did not articulate a standard for deciding when it was reversible error to decline to award punitive damages. It simply said, “Because of the seriousness of the defendant’s conduct, this Court directs the district court to award punitive damages to deter the defendant from such conduct in the future.” Id. at 164. The court had said earlier in the opinion that an award of punitive damages “ ‘involves an evaluation of the nature of the conduct in question, the wisdom of some form of pecuniary punishment, and the advisability of a deterrent’ to future illegal conduct.” Id. (quoting Lee v. Southern Home Sites Corp., 429 F.2d 290, 294 (5th Cir.1970)).
Our research reveals only one other federal case which supports the rule that an appellate court can mandate a punitive award — H.C. Hewett v. Jarrard, 786 F.2d 1080 (11th Cir.1986). In that case a juvenile detainee brought an action pursuant to 42 U.S.C. § 1983 against, among others, the superintendent of a juvenile detention center in Florida. He sought damages for the imposition of extended isolation without notice and hearing, the conditions of that isolation, unjustified and excessive force applied to him by the superintendent, and the denial of medical care. On appeal, our court held that the trial court erred in awarding only nominal damages and remanded the case to the district court to determine the proper amount of compensatory damages. The court also instructed the district court to award punitive damages on remand, finding that the superintendent’s actions “transcended mere negligence and constituted callous indifference to” the detainee’s federally guaranteed rights. Id. at 1089. This finding did no more than trigger consideration of punitive damages. Without further discussion or analysis, however, the court told the district court to award punitive damages on remand because the court concluded that the facts “establish compensable injury and conduct sufficiently egregious to warrant punitive damages.” Id.
*677The holdings in Gore and Jarrará that an appellate court can require a fact finder to award punitive damages are wrong. The Supreme Court’s discussion of punitive damages in Smith v. Wade demonstrates that these decisions are wrong. Punitive damages are never a matter of right and the fact finder may in any case decline to award them. See 25 C.J.S., Damages § 117(2) (1966); 22 Am.Jur.2d, Damages § 739 (1988); Restatement (Second) of Torts § 908, Comment d (1979); J. Ghiardi & J. Kircher, 1 Punitive Damages L. & Prac., § 5.39 (1987); L. Schlueter & K. Redden, Punitive Damages § 6.2 (2d ed. 1989); Merrit v. DeLos Santos, 721 F.2d 598 (7th Cir.1983) (trial courts cannot be required to award punitive damages).
Nevertheless, we are bound by the contrary precedent in our circuit. That precedent deserves fresh consideration by our court en banc. In the meantime, however, we must decide by what standard we are to determine when fact finders shall be required to award punitive damages.1
Wright’s argument on this appeal does not help us decide what standard is to be applied. He argues simply that Livingston’s conduct constituted “callous indifference” to federally guaranteed rights and, therefore, he was entitled to an award of punitive damages. The one page in Wright’s brief devoted to this subject does not explain why meeting this threshold does more than trigger consideration of the appropriateness of punitive damages.
Our previous decisions do not articulate a meaningful standard. The Gore court mandated an award of punitives because of the “seriousness” of the defendant’s conduct. Clearly, this is a standard without meaning. I cannot imagine conduct that is found to constitute an intentional violation of federal law or that demonstrates reckless or callous disregard of federally protected rights that is not “serious.” Indeed, the Supreme Court instructs us that a finding of this sort of conduct does no more than trigger a consideration of punitive damages. The Jarrará court did not articulate any standard at all for determining when punitive damages must be awarded. The majority implicitly recognizes the emptiness of the “standards” applied by the Gore and Jarrará courts and chooses to create its own standard to be applied in cases like this one. The standard the majority chooses is abuse of discretion.
Assuming that the standard is abuse of discretion, I cannot conclude that an abuse of discretion has been demonstrated in this case. After concluding that Livingston acted with callous or reckless indifference to Wright’s federally protected rights, the majority proceeds to resolve factual inquiries which should be resolved by the fact finder. The fact finder must balance the punishment and deterrent value of punitive damages with the nature of the conduct and the compensation already awarded. The majority concludes that this case “cries out” for punitive damages as punishment, and that punitive damages will deter both Livingston, if he is now engaged or hopes to again engage in law enforcement, and other law enforcement officers. The problem is that the propriety of awarding punitive damages for punishment and for deterrence are not questions of law, but fact-sensitive inquiries for the fact finder. Having concluded that the threshold for consideration of such damages has been met, however, our court proceeds to the factual inquiries, and in doing so usurps the prerogative of the fact finder.
A reasonable fact finder could conclude that it is not necessary to award punitives in this case to serve the purposes of punishment and deterrence.2 Livingston was a deputy sheriff in a small Florida county. In addition to compensatory damages, the *678amount of which is yet to be determined, attorneys’ fees will be awarded. While fees are not awarded to punish, and while Livingston’s income may be legally irrelevant, it is difficult to ignore the fact that the award of attorneys’ fees alone will probably exceed what Livingston earned in a year as a Florida Deputy Sheriff. A reasonable fact finder could conclude that an award of punitive damages to serve the purpose of punishing Livingston is not required. As for deterrence, there is no evidence in this case that Livingston will ever again work in law enforcement. There is also no evidence that other law enforcement officers have engaged in similar conduct. I fail to understand how the majority concludes that no reasonable fact finder could find it unnecessary to impose punitive damages in this case for deterrence purposes.
Punitive damages are “not favored in law,” Lee v. Southern Home Sites Corp., 429 F.2d 290, 294 (1970), appeal after remand, 444 F.2d 143 (5th Cir.1971). Many in the legal community today are concerned about excessive awards by juries. I find the prospect of appellate courts exercising the awesome power to mandate the award of punitive damages even more alarming, particularly if appellate courts can answer factual inquiries with no deference to fact finders.
. This standard should also determine when a jury is to be instructed that it must award such damages, because surely the right to such damages does not depend upon whether the trial was a jury trial or a bench trial. In Smith the Supreme Court noted that the jury had been instructed in a way that recognized the difference in the way the law treats compensatory damages and punitive damages; the jury had been instructed that if they found for the plaintiff they must award compensatory damages and that the law permits, under certain circumstances, an award of punitive damages. 461 U.S. at 52, 103 S.Ct. at 1638, n. 15.
. Wright’s brief on this appeal does not argue that an award of punitives is necessary for punishment or deterrence; the majority neverthe*678less concludes that punitives must be awarded for those purposes.