Joe Morgan v. Bill Woessner, and Clay Searle Los Angeles City, (Two Cases)

D.W. NELSON, Circuit Judge,

dissenting.

I respectfully dissent from portions of part IV.B of the majority opinion. I agree with my colleagues that, in our first opinion in this case, we erroneously granted a remittitur on the federal punitive damages award, reducing it from $300,000 to $100,000. I also agree that the state punitive damages award must be remanded under Adams v. Murakami, 54 Cal.3d 105, 284 Cal.Rptr. 318, 813 P.2d 1348 (1991). I part company with the majority, however, over its interpretation of the Supreme Court’s decision in Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991).

Searle and the City make two separate arguments with respect to the size of the punitive damages award in this case. First, they question whether California’s procedure for reviewing such awards comports with due process.1 Second, they claim that the punitive damages award is generally “excessive.” I address each of these arguments in turn.

1. The Due Process Claim

a. Interpreting Haslip

In Haslip, the Court considered whether a punitive damages award of $840,000 in an insurance fraud case violated due process. In finding that it did not, the Court favorably considered Alabama’s common law procedures regarding the imposition and review of punitive damages. Alabama’s system is three-tiered: (1) at the trial stage, there are detailed jury instructions regarding the purpose of punitive damages; (2) after any award of punitive damages, the trial court *1263will scrutinize the award (application of the so-called Hammond factors) and consider defendants’ motions for new trial or remittitur; (3) finally, the appellate court conducts an independent review using its own common law standards. Id. 499 U.S. at 16, 111 S.Ct. at 1046.

In finding that the Alabama review procedure met due process standards, however, the Court did not hold that the States must adopt, at a minimum, the Alabama procedure in order to survive constitutional review. The majority reaches beyond the Court’s opinion to draw such a conclusion when, in fact, the Haslip court went out of its way to avoid taking such a formulaic approach:

We need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that general concerns of reasonableness and adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus.

Haslip, 499 U.S. at 16, 111 S.Ct. at 1043 (emphasis added). Indeed, Justice Scalia, who concurred separately, faulted the majority opinion in Haslip precisely because it did not take a bright line approach: “... the Court chooses to decide only that the jury discretion in the present case was not un-due_ This jury-like verdict provides no guidance as to whether any other procedures are sufficiently ‘reasonable’ ...” Haslip, 499 U.S. at 17, 111 S.Ct. at 1046-47 (Scalia, J., concurring).

Rather than a bright line rule, then, the Court adopted a flexible approach which emphasized the overall reasonableness of a challenged review procedure. By its nature, such an approach is fact intensive and case specific. As such, it is consistent with the inherently variable nature of punitive damages. In his concurring opinion in Haslip, Justice Kennedy noted that punitive damages awards are bound to differ on a case-by-case basis.

Some inconsistency of jury results can be expected for at least two reasons. First, the jury is empaneled to act as a decision-maker in a single case, not as a more permanent body- Second, the generality of the instructions may contribute to a certain lack of predictability ... These features of the jury system for assessing punitive damages discourage uniform results, but nonuniformity cannot be equated with constitutional infirmity.

Haslip, 499 U.S. at 28, 111 S.Ct. at 1055 (Kennedy, J., concurring).

Thus, under my reading of Haslip, a due process analysis of a punitive damages award review procedure consists of two fundamental inquiries: (1) what safeguards are in place at the trial court level, when the fact-finder makes the decision of whether or not to impose punitive damages?; and (2) what post-verdict review procedures are there, at the trial court and/or appellate levels, and how meaningful are they? This interpretation is consistent with that expressed by most circuit courts which have considered the decision. In Eichenseer v. Reserve Life Ins. Co., 934 F.2d 1377 (5th Cir.1991), the Fifth Circuit expressly rejected the view that Has-lip is “a vehicle for expansive appellate review of punitive damages awards.” 934 F.2d at 1382. Instead, that court interpreted Haslip narrowly, as requiring

two practical considerations: (1) whether the circumstances of the case indicate that the award is reasonable, and (2) whether the procedure used in assessing and reviewing the award imposes a sufficiently definite and meaningful constraint on the discretion of the factfinder.... This is a fact intensive analysis.

Id. 934 F.2d at 1381-82. See also Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1778, 118 L.Ed.2d 435 (1992) (affirming a $6 million punitive damages award).

Similarly, the Eighth Circuit rejected the defendant’s argument that Haslip identified “the Alabama process ... as setting a minimum standard for acceptable due process in the awarding of punitive damages.” Latham Seed v. Nickerson Am. Plant Breeders, 978 F.2d 1493 (8th Cir.1992). See also Jordan v. Clayton Brokerage Co. of St. Louis, Inc., 975 F.2d 539 (8th Cir.1992); Peoples Bank and *1264Trust v. Globe Intern. Publishing, Inc., 978 F.2d 1065 (8th Cir.1992).2 The Second and Eleventh Circuits also have interpreted Has-lip as standing for a more generalized, flexible due process analysis of punitive awards which focuses on overall reasonableness. While the Second Circuit reduced a punitive damages award in Vasbinder v. Scott, 976 F.2d 118 (2nd Cir.1992), it nonetheless did so under a broad interpretation of Haslip as requiring that such awards be “reasonable and rational.” 976 F.2d at 121. Taking a similarly broad approach to Haslip, the Tenth Circuit reduced a punitive damages award from $25 million to $12.5 million in a products liability case. Mason v. Texaco, Inc., 948 F.2d 1546 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1941, 118 L.Ed.2d 547 (1992).3

b. Applying Haslip to this case

In light of Haslip, I would review the defendants’ due process claim with respect to the $450,000 punitive damages award under a two-stage inquiry. First, I would consider what safeguards were in place at the trial court level to insure that the award was reasonable in light of the defendants’ actions and the punishment and deterrence goals of punitive damages. Second, I would consider what post-verdict review procedures there were to further assess the reasonableness of the award.

The touchstone of the first level inquiry is the trial court’s instruction of the jury. In this case, the district court gave the standard California instruction on the imposition of punitive damages:

You may in your discretion award such damages, if, but only if, you find by clear and convincing evidence that said defendant was guilty of oppression or malice in the conduct on which you base your finding of liability.
‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard for the rights or safety of others. A person acts with conscious disregard of the rights and safety of others when he is aware of the probable dangerous consequences of his conduct and willfully and deliberately fails to avoid those consequences....

Jury Instruction (emphasis added). With respect to the amount of punitive damages, the district court instructed the jury as follows:

The law provides no fixed standards as to the amount of such punitive damages, but leaves the amount to the jury’s sound discretion, exercised mthout passion or prejudice.
In arriving at any award of punitive damages, you are to consider the following:
(1) The reprehensibility of the conduct of the defendant.
(2) The amount of punitive damages which will have a deterrent effect on the defendant in the light of defendant’s financial condition.
(3) That the punitive damages must bear a reasonable relationship to the injury, harm, or damage actually suffered by the plaintiff.

Jury Instruction (emphasis added).

As the majority opinion concedes, these instructions clearly satisfy the concerns of the Haslip court:

[The Alabama instructions] enlightened the jury as to the punitive damages’ nature and purpose, identified the damages as punishment for civil wrong doing of the *1265kind involved, and explained that their imposition was not compulsory.... As long as the discretion [to award punitive damages] is exercised within reasonable constraints, due process is satisfied.

Haslip, 499 U.S. at 16, 111 S.Ct. at 1044. First, the California instructions limit the jury’s discretion to award punitive damages in at least three respects.4 The court also instructed the jury that, in order to award punitive damages in any amount, it had to first find that the defendant acted with “oppression or malice” and defined these terms for the jury. Finally, the court warned the jury that it could not act out of prejudice and passion.

The California instructions in this case also meet the Haslip requirement of discussing the nature and purpose of punitive damages. The instructions spell-out the purposes of punishment of the defendant and future deterrence. And, importantly, they explicitly link these purposes to the degree of reprehensibility of the defendant’s conduct and the defendant’s financial condition. In these respects, the California instructions on punitive damages are more stringent than Alabama’s. Accord Hilgedick v. Koehring Finance Corp., 12 Cal.App.4th 330, 8 Cal.Rptr.2d 76 (1992); Wollersheim v. Church of Scientology of California, 10 Cal.App.4th 370, 16 Cal.App.4th 1426, 6 Cal.Rptr.2d 532 (1992).

I would next inquire into the post-verdict procedures for reviewing punitive damages. Under Haslip, we assess this review process to “make[ ] certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” Haslip, 499 U.S. at 17, 111 S.Ct. at 1045. In the absence of statutory review procedures, we again turn to the California common law review procedure for reviewing punitive damages awards.5 Under state common law, the district court was required to sit as an independent trier of fact when reviewing the award of punitive damages. Hilgedick, 12 Cal.App.4th at 353, 8 Cal.Rptr.2d 76 (citations omitted). In considering defense motions for a new trial or a judgment notwithstanding the verdict, the trial court should consider the following factors: (1) the relative egregiousness of the defendant’s conduct; (2) the relationship between the punitive award and the plaintiffs injury; and (3) whether the size of the award reasonably relates to the defendant’s financial condition. Wollersheim, 10 Cal.App.4th at 383-387, 6 Cal.Rptr.2d 532 (citations omitted). While not word-for-word like Alabama’s so-called Hammond factors, the California factors parallel the concerns expressed in the Alabama common law review procedure, and so I would uphold them.6

In contrast to my colleagues in the majority, I conclude that the twin processes of instructing the factfinder about the nature and purpose of punitive damages and the independent post-verdict review by the trial court meet the requirements of Haslip. These procedures are “meaningful and adequate” rather than “standardless,” and so comport with the general reasonableness requirements of Haslip.

*12662. Excessiveness Claim

In addition to claiming that the general process of awarding punitive damages violated due process, Searle and the City argue that the award is “excessive” and that the district court erred by failing to reduce it. We review for abuse of discretion a district court’s decision to grant or deny a motion for a new trial or remittitur because of the size of a punitive damages award. Browning-Ferris Industries, 492 U.S. at 278, 109 S.Ct. at 2922.

The defendants argue that the Court effectively overruled much of its holding in Browning-Ferris Industries with Haslip. Despite its concern with punitive damages, Haslip does not affect the abuse of discretion standard of review mandated by Browning-Ferris Industries; the two cases concern fundamentally different questions. Whereas Browning-Ferris Industries deals with the standards of appellate review of common law procedures for reviewing punitive damage awards, Haslip concerns the overarching constitutional validity of these very procedures. Haslip did not expressly or impliedly overrule any holding in Browning-Ferris Industries.7

In short, even after Haslip, we continue to review the defendants’ excessiveness claim under an abuse of discretion standard.8

This court must uphold a punitive damages award “[u]nless the amount of damages is grossly excessive, unsupported by the evidence, or based solely on speculation....” Id. 927 F.2d at 1485 (citing Los Angeles Memorial Coliseum Comm’n v. Nat’l Football League, 791 F.2d 1356, 1360 (9th Cir.1986)). Under this deferential standard of review, I would uphold the punitive damages award on the federal claims. Although there was conflicting testimony about the altercation between Morgan and the officers, the jury clearly was persuaded by Morgan’s testimony and that of the other witnesses for the plaintiff. Thus, the evidence supports a finding that state actors violated Morgan’s civil rights under Section 1983 and that the defendants’ conduct “involved a reckless or callous indifference to the constitutional rights of others” warranting punitive damages. Id. 927 F.2d at 1485.

The “grossly excessive” standard involves an inquiry into the relationship between the wrong committed and the goals of punishment and deterrence which punitive damages serve. The jury found that Searle initially approached and further harassed Morgan solely because of his African-American race. By awarding substantial punitive damages, the jury publicly condemned this conduct. Further, this award serves to deter generally police officers who might single out citizens on the basis of their race. In this context, we find that an award of $300,000 in punitive damages is not “grossly excessive.” Prior to today’s decision by the majority, this circuit never had reversed a punitive damages award in a police misconduct case on the ground that it was too large.9

*1267Because I believe that neither the defendant’s due process nor excessiveness claims have merit, I would affirm the punitive damages award as to the federal claims. I respectfully dissent.

. I note, however, that the Eighth Circuit recently withdrew a major opinion on the constitutionality of a punitive damages award in order to hear the case en banc. Robertson Oil Co., Inc. v. Phillips Petroleum Co., 979 F.2d 1314 (8th Cir.1993).

. Only the Fourth Circuit has read Haslip to require the States to parrot Alabama's system of reviewing punitive damages awards. See Johnson v. Hugo's Skateway, 974 F.2d 1408 (4th Cir.1992) (en banc); Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.1991). In Johnson and Mattison, the Fourth Circuit invalidated Virginia’s and South Carolina’s review processes, respectively, because they did not correspond to the Alabama model. As with the majority's opinion today, such an outcome amounts to the imposition "upon the state [of Virginia of] a federal common law [of punitive damages].” Johnson, 974 F.2d at 1425, 1428 (Luttig, J., concurring in part, dissenting in part).

. It is worth noting that the trial court instructed the jury to make its findings under the "clear and convincing evidence” standard, an evidentiary standard is more stringent than Alabama’s preponderance of the evidence standard.

. The California Supreme Court has not addressed directly the issue of whether California's common law review procedures comport with Haslip. In Murakami, the court expressly declined to reach this issue, 54 Cal.3d at 118, 284 Cal.Rptr. 318, 813 P.2d 1348, but the court recently granted review petitions in two cases which squarely raise the issue. See Gourley v. State Farm Mutual Automobile Insur. Co., 92 Daily Journal DAR 9796 (July 9, 1992); MGW, Inc. v. Fredricks Development Corp., 10 Cal.Rptr.2d 85, 832 P.2d 586 (1992).

.Once again, I note that California’s system appears to be more strict than the trial court review procedure approved in Haslip in terms of the degree of independence attributed to the trial court’s review of the award. In the case at bar, furthermore, the trial court was especially well-suited to such a task, as it had heard first-hand the evidence in two trials of the same case. So, while the district court was not required to and did not state its reasons for rejecting the defendants' motions for a new trial and judgment notwithstanding the verdict on the record, it was required to consider these defense motions independently.

.Some courts have read a footnote in Haslip as condemning, for constitutional infirmity, state common law procedures for awarding and reviewing punitive damages which do not mirror those in Alabama. See Mattison, 947 F.2d at 106. In note 10, the Court does note differences between the Alabama method which it approves and other methods:

In those respective schemes, an amount awarded would be set aside or modified only if it was 'manifestly and grossly excessive,’ or would be considered excessive when 'it evinces passion, bias and prejudice on the part of the jury so as to shock the conscience.’

Haslip, 499 U.S. at 17 n. 10, 111 S.Ct. at 1045, n. 10 (citations omitted).

I do not believe that the Supreme Court intended to overrule Browning-Ferris Industries in a footnote. The Court itself noted, in that case, that the defendants' had not made the due process claim. Further, there is not evidence to suggest that each and every "shock the conscience” or similar common law standard would fail to pass constitutional muster. Under my reading of Haslip, each procedure would have to be assessed on a case-by-case basis to explore the content of the common law standard.

. This conclusion is buttressed by the fact that, subsequent to Haslip, this court has relied on the standard of review articulated in Browning-Ferris Industries. See Davis; Larez v. City of Los Angeles, 946 F.2d 630, 639 (9th Cir.1991).

. In two recent police misconduct cases, this court upheld the punitive damages awards against excessiveness challenges. See Corder v. Gates, 947 F.2d 374 (9th Cir.1991); Larez, 946 F.2d at 639.