United States Court of Appeals
For the First Circuit
No. 04-1303
PEDRO CASILLAS-DÍAZ ET AL.,
Plaintiffs, Appellees,
v.
OFFICER ROMUALDO PALAU ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Angel L. Rivera Colón on brief for appellants.
Daliah Lugo Auffant and Perez Vargas & Lugo Auffant Law
Offices, P.S.C. on brief for appellees.
September 19, 2006
SELYA, Circuit Judge. This appeal follows a jury verdict
awarding a grand total of $1,300,000 in compensatory and punitive
damages to plaintiffs Pedro Casillas-Díaz (Casillas) and the Estate
of Eliomar López-Claudio (López). In reaching this verdict, the
jury found that four police officers, defendants Romualdo Palau,
Juan Martínez, Liz Díaz, and Gabriel De León, had used excessive
force in an encounter with Casillas and López. In this venue, the
officers, as appellants, maintain that the lower court erred in
denying their motion for judgment as a matter of law and their
alternative motion for a new trial or a remittitur. Discerning no
preserved error, we affirm the judgment below.
I. BACKGROUND
We rehearse the facts as the jury supportably could have
found them, guided by the rule that "when the losing party protests
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).
On September 18, 2000, at approximately 4:30 a.m., the
defendants encountered López, Casillas, and Casillas's bride-to-be,
Barbara Lee Camacho, while the three civilians were making the
rounds of San Juan's casinos. Officers Palau and Martínez stopped
López's vehicle, in which the trio was riding, at the Ambassador
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Hotel. Without incident, they ticketed the operator, Casillas, for
driving against traffic and failing to wear a seat belt.
Sometime later that morning, the plaintiffs and the
defendants met again at the Condado Plaza Hotel. The defendants
claim that they confronted Casillas and López after receiving
information that the pair had been involved in a "hit-and-run"
incident in the parking lot of the Ambassador Hotel. Although all
parties agree that an altercation ensued, the testimony as to
exactly what transpired is widely divergent.
The plaintiffs say that at the time of the confrontation
Casillas was speaking to a cabdriver outside the lobby of the
Condado Plaza, while López was asleep in the back seat of his
parked car. According to their version of the events, the police
berated the two men and then manhandled them for no apparent
reason. The defendants tell a vastly different tale. They claim
that they approached Casillas near the hotel lobby, that he pushed
one of the officers, and that López physically interfered with the
officers' attempt to subdue Casillas. In the officers' view,
Casillas and López were the aggressors in the fracas that ensued;
in the plaintiffs' view, the officers were the aggressors.
It is undisputed that, during the melee, Casillas and
López sustained injuries, and that the defendants proceeded to take
the two men into custody. They charged Casillas with eight
misdemeanor traffic infractions. In addition, they swore out
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felony charges against both Casillas and López for alleged acts of
violence aimed at public officials.
The criminal charges came to naught. The case against
López was rendered moot when he committed suicide; the charges
against Casillas were dropped. In the meantime, the battleground
shifted from the criminal courts to the civil courts: on September
18, 2001, Casillas and López's parents, representing his estate,
sued the officers under 42 U.S.C. § 1983 and Puerto Rico law.1
The plaintiffs' complaint alleged, variously, use of
excessive force, false arrest, false imprisonment, and malicious
prosecution. The defendants denied the material allegations of the
complaint, and, in due course, a jury trial commenced. At the
close of the plaintiffs' case in chief, the defendants moved for
judgment as a matter of law, see Fed. R. Civ. P. 50(a), citing an
ostensible lack of evidence. The district court reserved decision.
At the close of all the evidence, the court granted judgment as a
matter of law in favor of the defendants on the claims of false
arrest, false imprisonment, and malicious prosecution but allowed
the excessive force claims to go forward.
The jury found that the defendants had used excessive
force against both Casillas and López. It awarded Casillas $50,000
1
Camacho (who had married Casillas) was originally a plaintiff
but she is not a party to this appeal. A variety of other
defendants were originally named in the suit but exonerated in the
lower court proceedings. For simplicity's sake, we eschew any
further reference to these parties.
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in compensatory damages ($25,000 each against Palau and Martínez)
and awarded López's estate $250,000 in compensatory damages
($125,000 each against Díaz and De León). As a coup de grace, the
jury awarded a total of $1,000,000 in punitive damages ($250,000
against each of the four defendants).2
The defendants filed a timely post-trial motion for
judgment as a matter of law or, in the alternative, for a new trial
or a remittitur. See Fed. R. Civ. P. 50(b), 59(a). The district
court denied the motion. This appeal ensued.
II. LIABILITY
We divide our discussion of the defendants' challenge to
the liability verdict into three segments.
A. Standard of Review.
The district court's denial of a motion for judgment as
a matter of law poses a question of law, engendering de novo
review. See Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203,
208 (1st Cir. 1996). Where, as here, such a motion contests the
sufficiency of the proof, "the court of appeals must examine the
evidence and the inferences reasonably to be extracted therefrom in
the light most hospitable to the nonmovant." Sánchez v. P.R. Oil
Co., 37 F.3d 712, 716 (1st Cir. 1994). In performing this
2
It is unclear from the record below how the punitive damage
awards are to be apportioned, and any dispute in that regard must
be resolved by the district court. For the time being, we will
assume that the punitive damages are to be split evenly between
Casillas and López's estate.
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tamisage, "we may not consider the credibility of witnesses,
resolve conflicts in testimony, or evaluate the weight of the
evidence." Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987).
Judgment as a matter of law should be approved, or the
denial of such a judgment reversed, "only when the evidence, viewed
from this perspective, is such that reasonable persons could reach
but one conclusion." Id. It follows that we "may reverse the
denial of such a motion only if reasonable persons could not have
reached the conclusion that the jury embraced." Correa, 69 F.3d at
1191 (quoting Sánchez, 37 F.3d at 716).
Our review of the district court's disposition of a Rule
59(e) motion is also narrowly circumscribed. A district court may
set aside the jury's verdict and order a new trial only if the
verdict is against the law, against the weight of the credible
evidence, or tantamount to a miscarriage of justice. See Sánchez,
37 F.3d at 717. A district court's disinclination to disturb a
jury's verdict "can be reversed solely for abuse of discretion."
Id.
B. Waiver.
As a threshold issue, the plaintiffs contend that the
defendants have waived their sufficiency of the evidence challenge
by not raising it until their post-trial motion for judgment as a
matter of law. The premise on which this contention rests is
impeccable: a renewed motion for judgment as a matter of law under
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Rule 50(b) cannot assert new grounds but, rather, is "bounded by
the movant's earlier Rule 50(a) motion." Correa, 69 F.3d at 1196.
In other words, a party cannot use a Rule 50(b) motion as an
instrument for introducing a neoteric legal theory — one not
distinctly articulated in his end-of-the-evidence motion for
judgment as a matter of law — into the case. See id.; see also
James W. Moore, 5A Moore's Federal Practice ¶ 50.08 (2d ed. 1994)
(explaining that "any argument omitted from the motion made at the
close of the evidence is waived as a ground for judgment under Rule
50(b)").
Despite the correctness of the plaintiffs' premise, their
conclusion is awry. The record here reflects that the defendants
began the oral presentation of their Rule 50(a) motion at the close
of the plaintiffs' case with the assertion that the plaintiffs had
failed "to put forth sufficient admissible evidence" to allow a
reasonable jury to "find in their favor on a variety of crucial
factual issues." When the defendants renewed the Rule 50(a) motion
at the close of all the evidence, they made transparently clear
their belief "that plaintiffs have failed to provide any evidence
of a use of excessive force." Based on these and other pertinent
references contained in the record, we are satisfied that the
defendants raised their sufficiency of the evidence challenge in a
timely manner. Consequently, the issue has been preserved for
appeal.
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C. Use of Excessive Force.
Turning to the merits, we inquire first whether a
reasonable juror could have reached a conclusion favorable to the
plaintiffs concerning the use of excessive force. See Wagenmann,
829 F.2d at 200. The record here demands an affirmative answer to
that inquiry.
At trial, Casillas and Camacho testified about the events
of September 18, 2000. Their testimony, taken at face value,
indicated that Casillas and López were attacked without any
provocation and savagely beaten. The defendants presented a
markedly different version of the events surrounding the arrests.
They depicted Casillas and López as the aggressors, and
characterized their own use of force as reasonably necessary under
the circumstances.
In the last analysis, the issue boiled down to an
assessment of the comparative credibility of the witnesses. When,
as now, the credibility of witnesses comprises the crux of the
matter, a reviewing court must take special care not to intrude
upon the jury's domain. See Tennant v. Peoria & Pekin Union Ry.
Co., 321 U.S. 29, 35 (1944); Wagenmann, 829 F.2d at 200. It is the
proper province of the jury, not the court of appeals, to separate
wheat from chaff, resolve inconsistencies in the witnesses's
accounts, and determine what testimony is or is not worthy of
credence. See Correa, 69 F.3d at 1194.
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Here, the plaintiffs' evidence showed that both Casillas
and López were brutally assaulted and beaten into unconsciousness,
without legitimate reason or provocation. Viewing the record, as
we must, in the light most favorable to the plaintiffs and making
credibility calls to their behoof, we cannot say that the liability
verdict was irrational or unresponsive to the proof. The short of
it is that the plaintiffs' evidence, which included photographs
depicting the physical injuries inflicted by the defendants and
medical records describing those injuries, was enough to ground the
liability verdict. From that evidence, a reasonable jury could
well have concluded — as this jury did — that the defendants used
extravagant force in arresting Casillas and López. Accordingly,
the defendants were not entitled to judgment as a matter of law.
No useful purpose would be served by a separate
discussion of the new trial motion insofar as it pertains to
liability. After all, the district judge, who saw and heard the
witnesses, declined to meddle with the jury's factfinding. Given
the sharply divergent accounts presented by the witnesses, we are
bound to defer to the trial judge's first-hand appraisal of which
side had the better of its argument. See, e.g., id.
That ends this aspect of the matter. On this variegated
record, a finding that the officers resorted to excessive force was
contrary to neither the law nor the weight of the evidence. By the
same token, that finding did not in any way herald a miscarriage of
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justice. Accordingly, we hold that the district court's
ratification of the jury's liability verdict did not constitute an
abuse of discretion.
III. COMPENSATORY DAMAGES
The Civil Rules permit a party aggrieved by a jury
verdict to move within a stipulated time frame for a new trial.
See Fed. R. Civ. P. 59(e). In their timely post-trial motion, the
defendants challenged, inter alia, the size of the compensatory
damage awards, shaping this aspect of their motion as a request for
a remittitur. The district court rejected the argument that the
awards were overly munificent, declaring that neither award was "so
grossly excessive or inordinate to warrant setting it aside." The
defendants now renew this argument on appeal.
It is trite, but true, that "[t]ranslating legal damage
into money damages — especially in cases which involve few
significant items of measurable economic loss — is a matter
peculiarly within a jury's ken." Wagenmann, 829 F.2d at 215.
Accordingly, only infrequently — and then, for compelling reasons
— will we, from the vantage point of an algid appellate record,
override the jury's judgment as to the appropriate amount of non-
economic damages to which a plaintiff is entitled. See id.; Brown
v. Freedman Baking Co., 810 F.2d 6, 11 (1st Cir. 1987). That is
especially so where, as here, the trial judge, who saw and heard
the fray fought out in real time, has endorsed the award. See Ruiz
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v. Caraballo, 929 F.2d 31, 34 (1st Cir. 1991). It follows logically
that a verdict approved by both the jurors and the trial judge will
be pared "only if it is shown to exceed any rational appraisal or
estimate of the damages that could be based upon the evidence
before the jury." Dopp v. Pritzker, 38 F.3d 1239, 1249 (1st Cir.
1994) (quoting Segal v. Gilbert Color Sys., Inc., 746 F.2d 78, 81
(1st Cir. 1984)).
This standard of review is extremely deferential. That
deference ordinarily is expressed in terms of abuse of discretion.
See Borges Colon v. Roman-Abreu, 438 F.3d 1, 20 (1st Cir. 2006);
Torres v. Ortiz Velez, 341 F.3d 86, 102 (1st Cir. 2003), cert.
denied, 541 U.S. 972 (2004). The defendant bears the heavy burden
of demonstrating that a challenged award is "grossly excessive,
inordinate, shocking to the conscience of the court, or so high
that it would be a denial of justice to permit it to stand."
Correa, 69 F.3d at 1197 (quoting Segal, 746 F.2d at 81).
The district court instructed the jury, without
objection, that in assessing damages it could consider any
physical, mental, or emotional harm sustained by the injured
parties, their reasonable medical expenses, and the extent and
duration of their injuries. The court cautioned that the damages
must be "reasonable" and not "based on speculation or guesswork."
The defendants take no exception to the court's instruction. The
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question, then, is factbound — but the defendants do not deal with
the facts in any meaningful way.
Few principles are more a part of the warp and woof of
appellate practice than the principle that "issues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990). We have parroted this principle with
a regularity bordering on the monotonous. See, e.g., Fredera v.
Mun'y of Mayaguez, 440 F.3d 17, 21 (1st Cir. 2006); Cytyc Corp. v.
DEKA Prods., Ltd. P'ship, 439 F.3d 27, 32 (1st Cir. 2006); Goldman,
Antoneeti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l., Inc.,
982 F.2d 686, 687 (1st Cir. 1993). These reiterations are not
meant to be regarded as empty words: our adherence to this
principle imposes on litigants an unflagging obligation to spell
out their contentions "squarely and distinctly, or else forever
hold [their] peace." Zannino, 895 F.2d at 17. "[I]t is not enough
merely to mention a possible argument in the most skeletal way,
leaving the court to do counsel's work." Id.
In the case at hand, the defendants' challenge to the
compensatory damage awards flagrantly violates this bedrock
principle. In the "Argument" section of their brief, the
defendants posit that "even if the Court does not grant a new
trial, the Court should at least reduce the amount of the damages
awarded by the jury." Appellants' Br. at 14. They then cite
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general language from a few cases addressing the court's authority
to order a new trial if a verdict is unreasonably high. See id.
After alluding to this case law, the defendants baldly state, in a
completely conclusory fashion, that "after reviewing the evidence
and testimony presented during the trial [it] is fundamental that
the Court review the amount of damages awarded by the jury." Id.
at 16.
That is their entire argument on this issue. They at no
point attempt to apply the case law to the facts adduced at trial;
they at no point marshal the evidence as to the injuries and
damages sustained by either Casillas or López; and they at no point
discuss, let alone analyze, the pain, suffering, and emotional
distress engendered by those injuries. To cinch matters, their
brief is devoid of any citations to the record; they attempt
neither to identify the relevant evidence nor to show how that
evidence relates to — let alone undermines — the compensatory
damage awards.
This slap-dash approach is wholly inadequate to preserve
the issue of excessiveness for appellate review. A case closely on
point is Seahorse Marine Supplies, Inc. v. Puerto Rico Sun Oil Co.,
295 F.3d 68 (1st Cir. 2002). There, the defendant asserted that
damages had been calculated improperly but failed to provide any
meaningful record references or otherwise to analyze the pertinent
evidence. See id. at 82. In the absence of any particularized
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showing as to why the awarded damages were incorrect, we deemed the
argument waived. See id.
The same holds true in this case. The defendants grouse
about the size of the compensatory damage awards but then, in
effect, invite us to rummage through the record, unassisted by any
semblance of developed argumentation, in order to evaluate their
claim of excessiveness. As we have explained above, sound practice
demands that we decline this unattractive invitation: if a party
does not put enough stock in an argument to flesh it out, a
reviewing court should normally dismiss the argument out of hand.3
See King v. Town of Hanover, 116 F.3d 965, 970 (1st Cir. 1999). To
do otherwise would be unfair both to the adverse party and to the
court itself. We therefore treat the claim as waived.
IV. PUNITIVE DAMAGES
The defendants also challenge the amount of punitive
damages. Here, too, their argument is insufficiently developed and
subject to rejection on that ground alone. See Zannino, 895 F.2d
3
To be sure, "[w]e have latitude, rarely indulged, to notice
an [asserted] error not seriously developed on the appeal." United
States v. Ortiz-Cintrón, ___ F.3d ___, ___ (1st Cir. 2006) [No. 04-
2402, slip op. at 8]. This latitude, however, is reserved for
exceptional cases — and the case before us does not come close to
fitting that description: accepting, as we must, the jury's
findings of fact, both Casillas and López were savagely beaten and
plainly sustained severe and painful injuries. Given these facts,
we see no hint of injustice in holding the defendants to the easily
predictable consequences of their failure to observe a settled rule
of appellate practice.
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at 17. We need not rest on that ground, however, because the
argument is also patently meritless.
A jury may levy punitive damages in a section 1983 action
when a 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." Smith v. Wade, 461 U.S.
30, 56 (1983); see also Iacobucci v. Boulter, 193 F.3d 14, 25-26
(1st Cir. 1999). In order for punitive damages to be appropriate,
there must be "proof that the defendant acted 'in the face of a
perceived risk that [his] actions [would] violate federal law.'"
Iacobucci, 193 F.3d at 26 (quoting Kolstad v. Am. Dental Ass'n, 527
U.S. 526, 536 (1999) (alterations in original)).
We need not wax longiloquent. The district court
instructed the jury, without objection, that a determination to
award punitive damages was to be based on "whether you find that
the defendants acted willfully, deliberately, maliciously, or with
reckless disregard of the plaintiffs' constitutional rights." On
the basis of the evidence recounted above, the jury easily could
have found that the defendants acted in the face of a perceived
(and flatly unacceptable) risk that their actions would compromise
Casillas's and López's Fourth Amendment rights. No more was
exigible. See Borges Colon, 438 F.3d at 22.
The conclusion that an award of punitive damages was
permissible does not end our journey. The defendants' challenge to
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the amount of punitive damages presents an independent legal issue
— one that engenders de novo review. See id. at 21. This review
is "informed by principles of fundamental fairness," which "dictate
that a person receive fair notice not only of the conduct that will
subject him to punishment, but also of the severity of the penalty"
that may be imposed. Zimmerman v. Direct Fed. Credit Union, 262
F.3d 70, 81 (1st Cir. 2001) (quoting BMW of N. Am., Inc. v. Gore,
517 U.S. 559, 574 (1996)).
In evaluating the reasonableness of a punitive damage
award ancillary to a violation of section 1983, we consider "(1)
the degree of reprehensibility of a defendant's conduct; (2) the
ratio between punitive and actual and potential damages; and (3) a
comparison of the punitive damages figure and other civil and
criminal penalties imposed for comparable conduct." Davis v.
Rennie, 264 F.3d 86, 116 (1st Cir. 2001) (quoting Romano v. U-Haul
Int'l, 233 F.3d 655, 672-73 (1st Cir. 2000)). We will not disturb
such an award "unless we find it certain that the amount in
question exceeds that necessary to punish and deter the alleged
misconduct." Borges Colon, 438 F.3d at 21 (citation and internal
quotation marks omitted).
The record here satisfies the ancillary criteria that
ordinarily are thought to be relevant to the sustainability of
punitive damage awards. The reprehensibility of the defendants'
misconduct is the most salient of these criteria. See BMW, 517
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U.S. at 575; Romano, 233 F.3d at 673. On the plaintiffs' version
of events — a version that the jury evidently believed and that,
therefore, we must credit — the defendants' behavior reflects a
high degree of culpability. That misconduct was well outside the
acceptable norms of police work. See Nydam v. Lennerton, 948 F.2d
808, 811 (1st Cir. 1991) (discussing the conduct of police in
assaulting a citizen who supposedly was resisting arrest).
To add fuel to the fire, a punitive damage award may be
"justified not only by defendants' actions on [the date in
question] but also by their subsequent behavior." Davis, 264 F.3d
at 115 (quoting Hall v. Ochs, 817 F.2d 920, 927 (1st Cir. 1987)).
Here, the jury reasonably could have concluded that the subsequent
filing of felony charges against Casillas and López demonstrated
the officers' improper motives and callous indifference to the
plaintiffs' rights.4 Comparing the testimony of the defendants
with that of the plaintiffs' witnesses, "a factfinder might infer
that the stark clash could not have resulted from innocent
misrecollection and that its intentional quality intensified any
4
The defendants place great emphasis on the fact that a
magistrate found probable cause to charge the plaintiffs with
resisting arrest and violence against public officials. This
reliance is mislaid: neither plaintiff was convicted on those
charges, and the jury in this case supportably found that the
defendants had brutally beaten both Casillas and López, in
violation of their constitutional rights. See Graham v. Connor,
490 U.S. 386, 394-95 (1989).
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need the jury may have found for punishment and deterrence." Id.
at 116 (quoting Hall, 817 F.2d at 928).
The punitive damage award also fits comfortably with the
remaining BMW factors. For one thing, the award was reasonable in
proportion to the compensatory damage awards. Assuming that the
punitive damage award is to be divided evenly in two, see supra
note 2, the ratio between punitive and compensatory damages is 10:1
for Casillas and 2:1 for López's estate.5 In Romano, we upheld a
19:1 ratio between punitive and compensatory damages, noting that
the Supreme Court has "dismissed any simple, mathematical formula
in favor of general inquiry into reasonableness." 233 F.3d at 673.
Given that the record supports a finding of substantial physical
and emotional harm, the ratio between punitive and compensatory
damages presents no cause for concern in this case.
The final BMW factor requires us to view the punitive
damage award "in light of the complex of statutory schemes
developed to respond to the same sort of underlying conduct."
Zimmerman, 262 F.3d at 82. "[A] reviewing court engaged in
determining whether an award of punitive damages is excessive
should accord substantial deference to legislative judgments
concerning appropriate sanctions for the conduct at issue." Id.
5
In mounting this inquiry, courts have compared the aggregate
figures to be received by the plaintiff rather than the per capita
figures to be paid by each defendant. See Davis 264 F.3d at 116-
17.
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at 82-83. In drafting section 1983, Congress did not make any
reference to the quantum of damages. We may, therefore, consider
awards in similar cases to help determine if particular punitive
damages in a given case appear excessive. See Davis, 264 F.3d at
117.
A canvass of punitive damage awards upheld in comparable
section 1983 cases makes it nose-on-the-face plain that the
punitive damages granted in this case are not out of line. See,
e.g., Estate of Moreland v. Dieter, 395 F.3d 747, 751 (7th Cir.
2005) (approving award of $27,500,000 in punitive damages in an
excessive force case); Davis, 264 F.3d at 116-17 (affirming award
of $1,025,000 in punitive damages in excessive force case);
Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 581 (1st Cir. 1989)
(upholding a punitive damage award of $600,000); see also Nydam,
948 F.2d at 811 (characterizing as "restrain[ed]" an award of
$65,000 in compensatory damages and $200,000 in punitive damages
for excessive force). In fine, there is no indication that the
last BMW factor undermines the integrity of the present punitive
damage award.
To sum up, the jury supportably found that the defendants
brutally beat both Casillas and López, and thereby violated their
civil rights. It awarded substantial punitive damages — but the
amount, though generous, was not beyond the outer limit of what may
have been reasonably necessary to punish the offenders and deter
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others from similar misconduct. Consequently, we descry no
principled basis on which we might either jettison or trim the
award.
V. CONCLUSION
We need go no further. For the reasons elucidated above,
we reject the appeal and uphold the judgment in all respects.
Affirmed.
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Casillas-Diaz v. Palau
Court: Court of Appeals for the First Circuit
Date filed: 2006-09-19
Citations: 463 F.3d 77
Copy CitationsCombined Opinion