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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Mendez-Matos v. Municipality of Guaynabo
Court: Court of Appeals for the First Circuit
Date filed: 2009-02-24
Citations: 557 F.3d 36
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