concurring:
I concur in the judgment of the court, and concur generally in the opinion written by Judge Wright. I undertake in this opinion to focus on what I view as the critical issues and aspects of the case.
I
In defending this action grounded in unlawful arrest and detention, Chief Powell, chief of the United States Capitol Police, claims entitlement to a directed verdict on the grounds of a qualified official immunity. That immunity depends upon “the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief. . . .” Scheuer v. Rhodes, 416 U.S. 232, 247 — 48, 94 S.Ct. 1683, 1692 (1974). Chief Powell claims that he had a reasonable good faith belief that plaintiffs were in violation of the Capitol Grounds statute, 9 D.C.Code § 124 (1973), and that he was therefore privileged to arrest them.
A.
The elements of the offense with which the Capitol Grounds statute is concerned are set out in Judge Greene’s opinion in United States v. Nicholson,1 an opinion with which Chief Powell was thoroughly familiar. In order to protect against arbitrary interference with First Amendment rights, Judge Greene held that the broad language of the statute would have to be subjected to a limiting construction, so that the Capitol Police could “bar or order from” the Capitol Grounds only those groups which were “noisy, violent, armed, or disorderly in behavior”; which had the purpose or effect of interfering with the processes of the Congress, any Member of Congress, congressional employee, visitor or tourist; or which damaged any part of the buildings or plantings. In each category, Judge Greene noted, “the conduct would have to be more disruptive or substantial (in degree or number) than that normally engaged in by tourists and others and routinely permitted on the Grounds.” Slip. Op. at 17 n. 22. In addition, as Judge Wright’s opinion more fully explains, both law and basic fairness dictated that before persons previously permitted to assemble on the Capitol Grounds *206could be arrested for violation of the statute, they must be notified through a dispersal order that their permission to assemble has been revoked. See Cox v. Louisiana, 379 U.S. 559, 568 ff., 85 S.Ct. 453 (1965).
The question as to whether Chief Powell had a reasonable good faith belief that he had complied with these requirements was fully explored at trial. Plaintiffs presented testimony tending to show that theirs was a reasonably orderly meeting, not disruptive of the affairs of Congress. Plaintiffs’ witnesses testified that plaintiffs had assembled on the Mall and proceeded along the sidewalk to the Capitol, stopping at red lights. When the group was halted by Inspector Xander of the Capitol Police, Congressmen Dellums and Mitchell and Congresswoman Abzug informed him that they had invited the group to meet with them on the House steps, and Xander said “no problem”. Witnesses testified that as the Congressmen spoke to the group, the group listened, cheered and applauded. An Assistant U. S. Attorney testified that there was no violence at any time during the afternoon. Metropolitan Police Captain Albert Ferguson remembered it as “a fairly mild demonstration” (Tr. 3480, App. 1846) and Chief Wilson, Chief of the District of Columbia Metropolitan Police Department, a defendant in this action, admitted that apart from the fact that the plaintiffs were blocking the steps of the Capitol, “it was a reasonably orderly crowd.” (Tr. 1589, App. 962). “There were some speeches going on and a few particular misbehaviors” he said, “but generally it was not a bad crowd.”2 Id.
At approximately 3:15 or'3:20 p. m., Chief Powell gave and repeated over his bullhorn an order to disperse. Plaintiffs’ witnesses testified that although in some cases they saw Chief Powell hold up his bullhorn, they did not hear what he said. (The demonstrators were also using sound equipment to address the crowd.) A reporter testified that Chief Powell, after making his initial announcements, had turned to Chief Wilson and said that he thought many people had not heard the order to leave, and asked Wilson if he thought the order should be given again. “No,” Wilson said, “let them tell their story in court”. (Tr. 820, App. 645). The arrests began at 3:26 p. m., while Congressman Dellums was speaking. On the basis of this and much other evidence about the way the arrests were conducted, the plaintiffs argued to the jury that the crowd was a reasonably orderly one, and that Chief Powell lacked a reasonable good faith belief that the group was in violation of law.
Chief Powell, for his part, was given a full opportunity to show that the group was a disruptive one and that he had acted reasonably and in good faith. Defendants’ witnesses testified that during that period prior to the congressional addresses the group engaged in loud chanting, singing and shouting. There was also testimony that some members of the group pounded on Capitol doors and windows, painted on the Capitol walls and climbed on Capitol lamp posts. One member of the group disrobed; others waived Viet Cong flags.
Chief Powell testified that he attempted to warn the demonstrators on several occasions that they would be arrested if they did not disperse, but that when he addressed the crowd, the level of noise increased so as to drown him out. (Tr. 1952, 1959, App. 1176, 1182.) One arrested named plaintiff admitted that he had heard the announcement (Tr. 617, App. 457), and a policeman testified that, in his view, the demonstrators had no intention of leaving the steps, even if they had heard the announcements. (Tr. 3539, App. 1895).
*207In sum, both sides had an opportunity to present evidence concerning the behavior of the demonstrators, the effect on the Congress, and the actions of the police. The trial lasted six and one half weeks. The court and jury heard testimony from a total of seventy four witnesses, of whom twenty nine were called by defendants. A total of 190 documentary exhibits were introduced, including pictures of the demonstration.3
The case was submitted to the jury with very extensive instructions on the issue of immunity. The jury was told that under the Nicholson case the authorities could order from the Capitol Grounds:
any group as a whole which was more noisy violent or disorderly in behavior than is normally permitted on the Capitol grounds. Any group which had a purpose to interfere with the process of Congress, any member of Congress, congressional employees, visitors or tourists. Any group which had the effect by its presence of interfering with the processes of Congress or any member thereof, or any employee or visitor. Any group which damages any part of the building, shrubbery or plant life. The behavior must be such that the group can be characterized as a whole. If only one person, or even if several persons who might be easily identifiable participate in an unlawful behavior, this will not justify characterizing a group as a group to be dispersed.
The jury was then instructed that “if Chief Powell in good faith and reasonably believed that the group on the Capitol steps could properly be characterized as one of the groups described in the Nicholson ease, then Chief Powell was justified in ordering their dispersal.” Chief Powell was entitled to rely on “traditional sources of information” and the jury’s determination as to whether he acted reasonably was “not to be based on hindsight, but rather on the facts and circumstances and the information available to Powell at the time he gave the order.” “In the context of this case” the defendants were also required to prove that demonstrators “were in fact ordered off” the property, and that they were given a “choice of getting off or staying on and being arrested” and that they “ignored the order knowingly”.
Guided by these and other instructions, the jury deliberated for more than a day. The substantial verdict they returned in favor of the plaintiffs'clearly shows that the jury credited the plaintiffs’ characterization of the events in question.
In view of the very full exploration of these events at trial, the direct clash of the evidence, and the fair and complete instructions to the jury on this issue, I can see no principled basis for overturning the jury’s verdict on this issue of official immunity. It is quintessential^ the function of the jury to assess credibility and resolve complex factual disputes. It is also a traditional function of the jury to make judgments as to the reasonableness of an actor’s conduct. Here the jury was asked to do both, and we must respect its decision, both insofar as it determines the facts of what took place and the issues of reasonableness of conduct of both plaintiffs and defendants.
Of course, if a jury’s verdict reaches beyond the evidence, or reaches a result with which no reasonable man could concur, judicial intervention would be justified. But that is clearly not this case. Plaintiffs were able to introduce voluminous evidence in support of their points that the demonstrators were orderly and that the warnings were not heard. Even one of the defendants commented that this was “not a bad crowd”. In this posture, the jury verdict for plaintiffs must be sustained.
B.
Similarly, Chief Powell cannot insist on a directed verdict on the ground of good faith reliance on advice of counsel. As Judge *208Bryant’s jury instructions made clear, that defense depends upon complete disclosure of all material facts to the advising attorney. Here plaintiffs presented testimony that although Chief Powell had been instructed by the Speaker of the House not to arrest the demonstrators as long as they were being addressed by members of Congress, (Tr. 2555-56, App. 1563-64) Powell had not communicated that fact to the attorney on whose advice he now claims to be relying. (Tr. 3904, App. 2045). Powell argues that the Speaker’s orders permitted arrests if the group was not orderly, and that, in any event, those orders arrived after Powell had consulted with the assistant district attorney. But the factual question of what was said and the value judgment as to whether the sequence of events excused Powell’s nondisclosure were not for the court to decide, but necessarily questions for the jury.
II
I do find deficiencies in the instructions on damages. The jury returned verdicts for plaintiffs for monetary damages totall-ing an estimated $12,000,000. Of this, the largest item was an award of $7,500 to each class member and to Congressman Dellums for violation of first amendment rights. The jury also awarded $500 to each class member for cruel and unusual punishment, and $50 to each class member for malicious prosecution.4 Lastly, the jury awarded damages for false arrest and false imprisonment on a variable scale: for 12 hours or less in detention, $120; for 12 to 24 hours in detention, $360; for 24 to 48 hours of detention, $960; and for 48 to 72 hours of detention, $1,800.
A.
Defendants do not challenge the scale on which damages for false arrest and imprisonment were awarded. The jury was instructed that, “In determining damages for false imprisonment, you may consider both the length of time the plaintiffs were held and the treatment and conditions of detention to which they were subjected, if they were in fact falsely imprisoned.” App. 2303. Working with the Form of Verdict designed by the district court, the jury was able to award damages along a sliding scale which took into account, in a rough way, the different experiences of different members of the class, without losing administrative feasibility.
B.
The jury instructions with respect to cruel and unusual punishment were not so well designed. In the first place, they permitted damages duplicative of those awarded for false arrest and imprisonment. The jury was entitled to consider “whether the persons ... in charge used excessive and unnecessary physical force in dealing with them, whether or not they were furnished adequate nourishment, whether or not they were furnished with adequate shelter under reasonable conditions, bedding and toilet facilities.” App. 2308. The jury was also instructed to consider “the purpose for which (the plaintiffs) were detained” and “the length of time during which these persons were subjected to these conditions” in assessing damages for the violation. Id. While these instructions might have been reasonable in the circumstances of another case, here, where the plaintiffs had already received damages for “length of confinement and conditions of detention” under their claim for false arrest, I do not think that these instructions focused adequately on the “unusual” aspects of plaintiffs confinement.
A second reason why the $500 per plaintiff award cannot stand is that individual plaintiffs were confined under greatly'differing conditions. As is clear from the awards for false imprisonment, some members of the class were detained for substantially less time than others. One-half of the class was not taken to the D.C. cell block, *209where conditions were apparently most inhumane. It appears that even among those imprisoned at the same location, there may have been significant differences in terms of food and bedding supplied, medical attention, use of physical force, etc. Under these circumstances, a uniform award was inappropriate.
C.
I turn finally to the verdict of $7,500 per person for infringement of first amendment rights. Ultimately the first amendment rights of free speech and free assembly are priceless. But a price must be put on them in the context of civil litigation. That verdict must be as reasonable and guided as any other. An award for violation of a first amendment right must be commensurate with the value to the plaintiff of the right that has been lost. The jury must take into account the extent to which the plaintiffs were actually impeded in imparting and receiving messages. If a speaker was able to exercise his rights, but was somewhat confined in the manner or length of time for presenting his views, then an award is still possible, but it cannot be as much as if he were entirely frustrated from expression. Every action for damages has some potential for deterrence, but in the absence of special circumstances calling for exemplary damages, the amount of the award should be based on compensation, not punishment or deterrence.
Although the fact that damages are being sought on behalf of a large class does not mean that each member of the class should receive less than his due, it is a reason for care in the formulation of instructions. In cases of this type, a distortion in the size of the award to the individual plaintiff may be magnified thousandfold. There is therefore a special need to develop precise instructions on the damages issue, and a special obligation to undertake close scrutiny upon appellate review.
From this perspective, the instructions given to the jury in this case provided inadequate guidance. The jury was simply told “to apply its judgment and experience in determining fair compensation for the loss of such rights, taking into consideration all the facts and circumstances surrounding the violation.” App. 2347. This open-ended instruction did not inform the jury that it had an obligation to be reasonable in its award; and that its verdict should reflect the value to the plaintiffs of the lost opportunity for assembly and expression. The jury was not told to take into account the extent to which plaintiffs did get their message delivered through the totality of incidents, including the speeches, signs and demonstrations effected prior to the police intervention, and the media coverage of such incidents.
In addition, the vagueness of the instruction left room for the jury to consider improper factors. The size of the $7,500 verdict 5 —particularly taking into account that there was separate compensation for unlawful arrest and detention — suggests that there may have been an element of punitive damages in the jury’s award. There was no prayer for punitive damages. However, because the district court’s instruction set no limits on the jury’s discretion (and no separate instruction on the availability of exemplary damages was given), the jury may have assumed that its authority included the possibility of punitive damages. In the circumstances of this case, involving a large class and an otherwise broad instruction on damages for first amendment violation, the district court should have taken explicit steps to avert a punitive element in the damage award.6
Also disturbing is the possibility that the jury might have included damages for mental distress and suffering. I recognize that an individual plaintiff suing for violation of first amendment rights is not limited to out-of-pocket expenses but may, upon a proper showing, recover for emotional *210harm. Glasson v. City of Louisville, 518 F.2d 899, 912 (6th Cir.) (McCree, J.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975); Donovan v. Reinbold, 433 F.2d 738, 743 (9th Cir. 1970). But in the context of a large class action, there is simply too much room for variation on this item among members of the class. Thus, while individual class members might be permitted to recover for emotional harm upon a proper showing, the uniform class award for first amendment damages cannot in all fairness encompass this. The class award must focus on the injury sustained by all members of the class — the value that each one of them would necessarily place on the rights of free expression and assembly in the circumstances of this case. The class award for fourth amendment damages included an element for humiliation of arrest and detention,7 which may be deemed inescapable for any false detention. Beyond this, however, the award to all members of the class as a class cannot go. In sum, class-wide damages must be those which necessarily arise from events which made this action appropriate for class treatment in the first place: the decision that the group as a whole should be arrested; the uniform booking procedures; and the assumption all the demonstrators were essentially in the same position, an assumption confirmed by the United States Attorney in advising class counsel that he could pick any eight individuals to use as test case defendants in the criminal prosecution.
Because the district court failed to provide the jury with any criteria defining the proper scope of the monetary recovery for first amendment infringement, I think that this part of the judgment must be vacated. I see wisdom, however, in Judge Wright’s suggestion that the parties consider whether this issue might most appropriately be handled on remand by the trial judge.
CONCLUSION
During the six weeks of trial, the jury heard two conflicting versions of the events which precipitated the arrests and subsequent confinement. In the eyes of the police, the assembly on the Capitol steps was part of a concerted effort by the organizers of May Week to disrupt the operations of the federal government and intimidate the Congress. Chief Powell viewed the demonstration as “a disorderly, hostile and violent crowd” and argued that his concern for the safety of the Congress, as well as the noise of the crowd, justified his action. Plaintiffs portray the arrests as stemming from a concerted effort by law enforcement authorities to end dissent by arresting dissenters. Plaintiffs’ witnesses testified that this was a nonviolent, reasonably orderly assembly seeking to present a petition and hear the addresses of several interested Congressmen.
The jury credited plaintiffs’ characterization of the demonstration. Since reliance on the intelligence and fairness of the well-instructed jury is central to our system of justice, we respect the jury’s resolution of these major factual issues.
The court sustains the jury’s award of damages for false arrest and imprisonment in sums commensurate with the duration of imprisonment. In the belief, however, that the jury did not receive adequate guidance with respect to damages, it is appropriate to vacate those verdicts which were duplica-tive or excessive or which permitted uniform compensation for injuries not uniformly sustained throughout the class. The remand will confine damages to a determination of reasonable compensation for the interference with plaintiffs’ first amendment rights.
Hi * * * %
Receipt of the dissenting views of my esteemed brother Tamm prompts me to add a word. In part, he seems to say that the true facts, if they only had been effectively presented at trial, would have established a *211stronger ease for defendants, and in his view a conclusive one. But trial and appellate courts alike must dispose of cases on the records before them. As Judge Wright points out, at n. 88, Chief Powell had ample opportunity to testify as to how his reactions to the demonstration of May 5 may have been affected by his awareness of the prior disturbances. There can be only a limited role for judicial notice as to complex and controversial events. It may be appropriate to refer to the record in another case before the same court. Thus the issues in Apton8 made it useful to refer to the record in Sullivan,9 even though that in turn was the kind of record appropriate for an interlocutory ruling. But neither of those records bring out the situation confronted by Chief Powell on May 5, 1971, which is the matter at hand. The defendants did not take the position that in view of the situation prior to May 5 it was unlawful for plaintiffs to hold any demonstration whatever on May 5 on Capitol Grounds. The question is, what was the nature of the demonstration that was held, and whether the police reaction to that demonstration was reasonable. Our prior opinions provide background that is not irrelevant. But this case must be decided on the record concerning May 5, the instructions to the jury and its verdict.
In conclusion, although I have put my approach in my own way, I do join Judge Wright in the fundamental conception that this was a case where a jury verdict, after more than a day of deliberation following a six week’s trial, resolved the legal issues presented by conflicting versions of the events, and conflicting views of the reasonableness of conduct of both defendants and plaintiffs. The remand of the damages determination reflects a proper judicial concern that the plaintiffs should receive full compensation for the impairment of their rights and their suffering, but not a windfall.
. Nos. 20210-69A et al. (D.C.Ct. of Gen.Sess. June 19, 1969), aff’d, 263 A.2d 56 (D.C.App. 1970).
. The House Ways and Means Committee was meeting just inside the steps where the group was located. The Minority Counsel for that Committee, who was called to the stand by the defendants, said that the noise from the crowd amounted to “a steady hum” and that the chants were “a little louder.” (Tr. 2162, App. 1348). He testified that the Committee was able to complete its business without interruption or suspension, and that it was “not uncommon” for the Committee to hear noise constituting a “problem” from tourists milling about in the corridors. (Tr. 2172-73, App. 1358-59).
. A police film of the demonstration was produced by the government at the 1971 criminal trial of the demonstrators. Although it was subpoenaed by the plaintiffs for use in this trial, it was not produced. Inspector Robert Krohling of the Capitol Police Department testified that he understood that it had been destroyed. (Tr. 3573, App. 1929).
. The eight'persons who were defendants in the 1971 criminal trial received an additional $3,000 apiece. Because the court vacates the awards for malicious prosecution on substantive grounds, I do not discuss the damage aspects.
. See, e. g., Manfredonia v. Barry, 401 F.Supp. 762, 770-72 (E.D.N.Y.1975) and cases cited therein.
. Such an instruction was requested by Defendant Powell. Instruction No. 16, A. at 202.
. See Dellums v. Powell, 184 U.S.App.D.C. - at -, 566 F.2d 216 at 227, decided this day (“. . . the insult of false arrest, any subsequent humiliation or mistreatment, and the duration of loss of liberty.”)
. Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974).
. Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973).