United States Court of Appeals
For the First Circuit
No. 04-1217
JUSTIN LEE WHITFIELD; TERRY WHITFIELD; GAIL WHITFIELD,
Plaintiffs, Appellees,
v.
ANIBAL MELÉNDEZ-RIVERA; ISMAEL ÁLVAREZ-MONGE;
MARIA L. LEBRÓN-RAMOS,
Defendants, Appellants,
MUNICIPALITY OF FAJARDO; WILLIAM MANGOMÉ-ROLDÁN
Defendants.
No. 04-1218
JUSTIN LEE WHITFIELD; TERRY WHITFIELD; GAIL WHITFIELD,
Plaintiffs, Appellees,
v.
MUNICIPALITY OF FAJARDO
Defendant, Appellant,
ANIBAL MELÉNDEZ-RIVERA; ISMAEL ÁLVAREZ-MONGE;
MARIA L. LEBRÓN-RAMOS; WILLIAM MANGOMÉ-ROLDÁN
Defendants.
No. 04-1219
JUSTIN LEE WHITFIELD; TERRY WHITFIELD; GAIL WHITFIELD,
Plaintiffs, Appellees,
v.
MUNICIPALITY OF FAJARDO; ANIBAL MELÉNDEZ-RIVERA;
ISMAEL ÁLVAREZ-MONGE; MARIA L. LEBRÓN-RAMOS
Defendants,
WILLIAM MANGOMÉ-ROLDÁN,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Gael Mahony with whom Stephen S. Young, Holland & Knight, LLP,
Etienne Totti Del Toro, and Totti & Rodriguez Diaz, were on brief,
for appellant, Municipality of Fajardo.
Eileen Landron Guardiola, with whom William Vázquez Irizarry,
Secretary of Justice, Ivonne Palerm, Deputy Secretary of Justice In
Charge of Litigation, Eduardo Vera Ramírez and Landrón & Vera, LLP,
were on brief, for appellants, Anibal Meléndez-Rivera, Ismael
Álvarez-Monge and Maria L. Lebrón-Ramos.
Tessie M. Leal-Garabis, with whom Gary H. Montilla, and
Quiñones & Sánchez, P.S.C., were on brief, for appellant, William
Mangomé-Roldán.
John F. Nevares with whom John F. Nevares and Associates
P.S.C., Camilo K. Salas III, Karen M. Fontana, and Niles, Salas,
Bourque & Fontana, L.C., were on brief for appellees.
December 6, 2005
HOWARD, Circuit Judge. Justin Whitfield was shot twice
in the left leg by two municipal police officers as he retreated
from the scene of an apparent arson at a parking garage in Fajardo,
Puerto Rico. Alleging that the officers had employed excessive
force, and that the mayor and the police commissioner of the city
had failed to adopt and implement regulations and training programs
instructing local police on the proper use of deadly force,
Whitfield and his parents brought suit under, inter alia, 42 U.S.C.
§ 1983. Whitfield additionally brought suit against the city,
seeking to hold it liable under a Monell theory. See Monell v.
Dep't of Social Services, 436 U.S. 658 (1978). The defendants now
appeal the jury verdict and the over $5 million dollar compensatory
and punitive damage awards. We affirm in part, reverse in part,
and remand.
I.
We state the facts in the light most favorable to the
jury verdict. See Torres-Rivera v. O'Neill-Cancel, 406 F.3d 43, 45
(1st Cir. 2005). In the pre-dawn hours of December 9, 2000, Justin
Whitfield, an active duty serviceman in the United States Navy
stationed in Puerto Rico, gave a ride to a friend and fellow Navy
enlistee, John Kawika. Under the pretense of showing Whitfield
some antique cars, Kawika instructed Whitfield to drive to a
municipal parking garage in downtown Fajardo. Once they arrived,
Kawika told Whitfield he intended to light a car on fire. Kawika
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proceeded to climb the exterior wall of the garage and Whitfield
followed. As Whitfield looked on, Kawika set fire to a convertible
on the third level of the garage.
Two patrolling Fajardo police officers, Officer William
Mangomé-Roldán, and his immediate superior, Sergeant Maria Lebrón-
Ramos, observed Kawika and Whitfield scaling the exterior garage
wall. The officers entered the building to investigate. Upon
reaching the third level, Mangomé and Lebrón found three cars on
fire. The officers saw two people at the far end of the garage and
ordered them to stop. Ignoring these commands, Kawika jumped from
the third level of the garage to the street below and ran.
Whitfield followed soon thereafter.
Whitfield and the officers present diverging stories of
what happened next. According to Whitfield, after dropping 20 feet
from the garage, he picked himself up and started running toward
his car, which was parked down the street. The street was
illuminated by street lights. Before he got very far he “felt a
force from behind” that knocked him to the ground. Not realizing
he had been shot, Whitfield got up and continued to run. When he
noticed that his left foot was pointing toward his right foot, he
began to hop on his right leg. He was then knocked to the ground
a second time. At this point, realizing that he had been shot,
Whitfield remained still and waited for the police. Whitfield
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denied that he had a weapon or any other object in his hands at any
time during the course of these events.
Lebrón and Mangomé testified that they split up when they
entered the garage. Lebrón arrived first at the scene of the arson
and observed Kawika jump off the ledge. She then noticed Whitfield
standing nearby with his back to her. She testified that, as she
moved to within 20 feet of him, Whitfield turned his head toward
her and she saw that he held a metal object with both hands.
Despite their close proximity, Lebrón testified that she did not
seek cover because she did not fear for her life. She then watched
as Whitfield jumped down to the street below. When Mangomé
arrived, Whitfield was already in the process of jumping. Mangomé
did not observe a metal object in Whitfield's hands at that time.
Moving to the ledge from which Whitfield had jumped,
Lebrón and Mangomé spotted Whitfield on the street below running
away from the garage. Lebrón yelled “alto policia” (stop police).
Both Lebrón and Mangomé testified that, at that moment, they saw
Whitfield turn toward them holding a metal object in his hands.
Fearing that he would shoot at them, Lebrón and Mangomé
simultaneously fired their handguns.1 Lebrón then observed
Whitfield grab his leg and limp away from the garage until he
eventually fell to the ground.
1
Lebrón testified that she only remembers firing once, but may
have fired multiple shots. Mangomé testified that he closed his
eyes and fired two or three shots.
-5-
An injured Whitfield lay in the street unattended for
some period of time. Mangomé testified that he left the scene to
pursue Kawika immediately after the shooting and did not return
until about 15 to 20 minutes later. Lebrón testified that she
lingered in the garage for 8 to 10 minutes before looking for
Whitfield outside. Neither Lebrón nor Mangomé located the metal
object that Whitfield allegedly was carrying. Mangomé testified
that when he returned to the scene, another officer showed him a
metal object in the street. The officer who allegedly found the
metal object did not testify at trial, and neither Mangomé nor
Lebrón could say whether the object that was found in the street
was what they had seen in Whitfield's hands. They also did not
know whether the object was ever fingerprinted.
Hospital x-rays revealed a communal fracture2 of
Whitfield's thigh bone. Whitfield was transferred to the Puerto
Rico Medical Center, where he awaited surgery for eight days. The
day after the surgery, Whitfield was released to the Navy and was
transferred to the Naval hospital in Fajardo. Physicians at the
Naval hospital determined that, without follow-up surgery,
Whitfield's leg would not heal properly. Therefore, five days
after the initial surgery, a second surgery was performed. Despite
2
The plaintiffs' expert defined this as a “multiple fragment
fracture.”
-6-
the two surgeries, Whitfield has not recovered the full use of his
left leg and continues to suffer from chronic pain.
Following the shooting, Whitfield's parents were notified
that their son had been shot and was hospitalized in Puerto Rico.
Shortly thereafter, they flew from their home in Ohio to Puerto
Rico to visit him. They observed that he was in acute pain. After
his discharge from the Navy, Whitfield returned home to live with
his parents.
Whitfield brought the underlying civil rights action
seeking relief under 42 U.S.C. §§ 1981, 1983 and 1985 for
violations of his rights under the Fourth, Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution.
Whitfield's parents, Terry and Gayle Whitfield, sought relief for
emotional damages under Article 1802 of the Civil Code of Puerto
Rico. The plaintiffs alleged that Sergeant Lebrón and Officer
Mangomé had violated Whitfield's constitutional right to be free
from the use of excessive force. They further alleged that the
city of Fajardo; the mayor, Anibal Meléndez-Rivera; and the police
commissioner, Ismael Álvarez-Monge, were liable for failing to
adopt regulations governing the proper use of firearms and to train
municipal police officers in accordance with such regulations.
-7-
Following a flurry of pre-trial motions,3 the district
court denied cross-motions for summary judgment on the issues of
supervisory and municipal liability. The court also denied motions
to dismiss and for summary judgment seeking to invoke the qualified
immunity defense on behalf of the officers, the mayor and the
police commissioner.
The surviving claims of excessive force and municipal and
supervisory liability were heard by a jury. At the close of the
plaintiffs' case, and again at the close of all evidence, the
defendants moved for judgment as a matter of law under Fed. R. Civ.
P. 50(a). Finding that the validity of the claims and defenses
hinged on the resolution of disputed facts, the court denied these
motions and submitted the case to the jury. The jury thereafter
returned a verdict in favor of the plaintiffs on all claims, and
awarded the plaintiffs $5 million in compensatory and $98,000 in
punitive damages. The court again denied the defendants' effort to
invoke qualified immunity and entered judgment consistent with the
verdict and the jury's award of damages.
The defendants filed a joint post-trial motion seeking
judgment as a matter of law or a new trial, see Fed. R. Civ. P.
50(b), 59(a), or a remittitur of the damages award, see Fed. R.
3
The district court dismissed plaintiffs' conspiracy claims
under 42 U.S.C. §§ 1983 and 1985, plaintiffs' racial discrimination
claim under 42 U.S.C. § 1981, and plaintiffs' Eighth Amendment
claim. These rulings are not challenged on appeal.
-8-
Civ. P. 59(e). They argued that the two police officers, the
mayor, and the police commissioner should have been afforded
qualified immunity because their conduct had been reasonable under
the circumstances. The city, the mayor, the police commissioner,
and Sergeant Lebrón additionally argued that grounds for the
imposition of municipal and supervisory liability had not been
established. The defendants also argued that the district court
had committed several evidentiary, instructional and trial
management errors necessitating a new trial. Finally, the
defendants argued that a remittitur was required because the
compensatory damages were excessive and punitive damages were not
warranted. The district court denied the defendants' joint post-
trial motion on all grounds. This appeal followed.
II.
A. Qualified immunity: officers Lebrón and Mangomé
Defendants Lebrón and Mangomé argue that the district
court erred in not granting them qualified immunity for two
reasons. First, they argue that the plaintiffs failed to present
sufficient evidence to establish a violation of Whitfield's
constitutional rights. Second, they argue that their conduct was
objectively reasonable under the circumstances. They emphasize
that they were forced to make a split-second decision, under
hostile circumstances, about whether their use of deadly force
would be justified. Given the volatility of the situation, most
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notably their belief that Whitfield was turning to shoot at them,
they argue that their decision to fire in self-defense was not
unreasonable. The fatal flaw in the defendants' argument is that
it ignores the clear implication of the jury's verdict: that the
jury did not believe their self-defense story.
We review the district court's denial of qualified
immunity de novo. See Jarrett v. Town of Yarmouth, 331 F.3d 140,
146 (1st Cir. 2003). When, as here, the defendants appeal from a
denial of qualified immunity after a jury verdict has been
rendered, the evidence is “construed in the light most hospitable
to the party that prevailed at trial,” and deference is “accorded
the jury's discernible resolution of disputed factual issues.” Id.
at 147 (quoting Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir.
1999)).
The doctrine of qualified immunity provides a safe harbor
for public officials acting under the color of state law who would
otherwise be liable under 42 U.S.C. § 1983 for infringing the
constitutional rights of private parties. See Anderson v.
Creighton, 483 U.S. 635, 638 (1987). It is a compromise that
“strives to balance [the] desire to compensate those whose rights
are infringed by state actors with an equally compelling desire to
shield public servants from undue interference with the performance
of their duties and from threats of liability which, though
unfounded, may nevertheless be unbearably disruptive.” Buenrostro
-10-
v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992). Public officials are
therefore entitled to qualified immunity unless the facts establish
that their conduct violated a constitutional right that was
“clearly established” at the time of the violation such that a
reasonable officer would have known that the conduct at issue was
unlawful. Santana v. Calderon, 342 F.3d 18, 23 (1st Cir. 2003).
We ordinarily assess claims of qualified immunity under
a three-part test. Riverdale Mills v. Pimpare, 392 F.3d 55, 60-61
(1st Cir. 2004). First, we ask whether the facts alleged, taken in
the light most favorable to the plaintiff, amount to a violation of
a constitutional right. Id. at 61 (citing Saucier v. Katz, 533
U.S. 194, 201 (2001)). Second, we ask whether that constitutional
right was clearly established at the time of the alleged violation.
Id. And third, we ask whether a reasonable officer, similarly
situated, would understand that his or her conduct violated that
clearly established right. Id.
In an excessive force case, the threshold constitutional
question is analyzed under the Fourth Amendment's objective
reasonableness standard. See Saucier, 533 U.S. at 204-05 (citing
Graham v. Connor, 490 U.S. 386, 394 (1989)). Under this standard,
if an officer "reasonably, but mistakenly, believed that a suspect
was likely to fight back . . . the officer would be justified in
using more force than in fact was needed." Id. at 205. In denying
the defendants' pre-trial and mid-trial motions seeking to invoke
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the qualified immunity defense, the district court found that there
were material factual disputes bearing on whether the defendant
police officers had acted reasonably under the circumstances. The
primary dispute concerned whether Whitfield posed a threat to the
officers at the time that they shot him. Specifically disputed was
whether Whitfield was running away, or whether he had stopped
running and had turned toward the officers with a metal object in
his hand.
The jury entered a verdict for the plaintiffs,
specifically finding that Lebrón and Mangomé “showed deliberate
indifference in committing acts that violated [Whitfield's] right
not to be subjected to excessive or unreasonable force during an
arrest.” In addition to compensatory damages, the jury awarded
punitive damages, finding that “the defendants acted with malice or
with intent or reckless indifference to violate” Whitfield's
constitutional rights. In light of these findings, the district
court denied qualified immunity for the police officers and entered
judgment for the plaintiffs.
We need not linger on the threshold question -- whether
the evidence established a constitutional violation.4 The Supreme
4
Although the Supreme Court has stated that the constitutional
inquiry should consider the "facts alleged" and the "parties'
submissions," Saucier, 533 U.S. at 201, when reviewing a post-
verdict qualified immunity ruling, we accept "the jury's
discernible resolution of disputed factual issues." Jarrett, 331
F.3d at 147; Wilson v. City of Boston, 421 F.3d 45, 53-54 (1st Cir.
2005).
-12-
Court concluded twenty years ago that a police officer may not use
deadly force against a fleeing suspect unless it is necessary to
prevent the suspect's escape and the suspect poses a significant
threat of death or serious physical injury to the officer or
others. See Tennessee v. Garner, 471 U.S. 1, 11 (1985); Jarrett,
331 F.3d at 149 (“[T]he use of deadly force is constitutional only
if, at a minimum, a suspect poses an immediate threat to police
officers or civilians.”). The police officers in this case
defended their actions by arguing that they had shot Whitfield in
self-defense. “[T]he problem with this argument is that it depends
upon the officers' version of the facts--a version the jury plainly
rejected.” Acosta v. City of San Francisco, 83 F.3d 1143, 1148
(9th Cir. 1996) (quoting Posr v. Doherty, 944 F.2d 91, 95-96 (2d
Cir. 1991)); Stephenson v. Doe, 332 F.3d 68, 78 (2d Cir. 2003)
(holding that the jury's verdict of liability on excessive force
"apparently credited] [the plaintiff's] account that he was not
given adequate warning and was unarmed and fleeing when he was
shot"). The evidence here was sufficient to support a finding that
an unarmed Whitfield was shot from behind as he fled. The jury
apparently credited this version of the events and we see no basis
for disturbing its finding.
With the jury having supportably found a violation of
Whitfield's Fourth Amendment right to be free from excessive force,
we next consider whether the right was clearly established at the
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time of the incident and whether "an objectively reasonable
official would have believed that the action taken violated that
clearly established constitutional right." Wilson v. City of
Boston, 421 F.3d 45, 58 (1st Cir. 2005) (internal quotation
omitted). This inquiry “must be undertaken in light of the
specific context of the case, not as a broad general proposition.”
Saucier, 533 U.S. at 201. “The contours of the right must be
sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Id. at 202 (quoting
Anderson, 483 U.S. at 640). Although the Supreme Court has
cautioned that in many cases the generalized holdings of Garner and
Graham will not provide sufficient notice to police officers, the
Court has also acknowledged that, in the obvious case, the
standards announced in those decisions alone are sufficient to
“'clearly establish' the answer.” Brace v. Hagen, 543 U.S. 194,
125 S. Ct. 596, 599 (2004); Hope v. Pelter, 536 U.S. 730, 741
(2002) (“[Officials can still be on notice that their conduct
violates established law even in novel factual circumstances.”).
Viewing the facts in the light most favorable to the
verdict, the district court correctly concluded that a reasonable
officer, similarly situated, would understand that his or her
conduct violated the rights clearly established in Garner and
Graham. This is especially true given the factual similarity
between Garner and the present case. In Garner, a burglary suspect
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attempted to escape the police by climbing over a chain link fence.
See 471 U.S. at 3. Although the arresting officer did not see a
weapon on the suspect, he shot the suspect in the back of the head
as he climbed the fence. See id. at 3-4. Applying the Fourth
Amendment balancing test, the Supreme Court stated that, while it
“is no doubt unfortunate when a suspect who is in sight escapes,
. . . the fact that the police arrive a little late or are a little
slower afoot does not always justify killing the suspect. A police
officer may not seize an unarmed, noncancerous suspect by shooting
him dead.” Id. at 11. See also Ellis v. Wynalda, 999 F.2d 243
(7th Cir. 1993) (denying qualified immunity where a police officer
shot a burglary suspect in the back after the suspect threw a
light-weight mesh bag and a jacket at the officer and then turned
and ran away); Davis v. Little, 851 F.2d 605, 607-08 (2d Cir. 1988)
(finding a Fourth Amendment violation where a fleeing felon, who
had allegedly punched and shoved two police officers in making his
escape, was subsequently shot by one of the police officers who
knew the felon was unarmed). Because the jury rejected the
defendants' contention that Whitfield appeared threatening, the
district court correctly concluded that Lebrón and Mangomé were not
entitled to qualified immunity.
B. Municipal and supervisory liability
The jury found municipal and supervisory liability on the
theory that Whitfield's injuries were a direct result of a “policy
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or practice” of the mayor and the police commissioner “and/or
[their] failure to properly train [the Fajardo police] and [to]
adopt and enforce regulations as to the proper use of force and the
proper use of firearms.” According to the plaintiffs' theory, the
absence of any municipal regulations governing the use of deadly
force illustrated that the mayor and the police commissioner (and
by implication, the city) were deliberately indifferent to the
constitutional rights of the citizens of Fajardo.
The district court denied the defendants' joint motion
for judgment as a matter of law or for a new trial. The court
found three pieces of evidence in support of the jury's verdicts:
the police commissioner's testimony that Fajardo did not have
regulations governing the use of force, the mayor's testimony that
he was unaware of any municipal regulations governing the use of
force, and Whitfield's testimony concerning the incident itself.
Although the defendants had presented evidence that the Puerto Rico
Police Department had promulgated Commonwealth-wide regulations
governing the use of force, the court found that the testimony of
the mayor and the police commissioner created a factual dispute as
to whether Fajardo had adopted these regulations and trained its
police in accordance with them. According to the court, the jury
could have inferred, from Whitfield's testimony concerning Lebrón
and Mangomé's conduct, that the officers had not been properly
trained.
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We review the district court's denial of a motion for
judgment as a matter of law de novo. See Baron v. Suffolk County
Sheriff's Dep't, 402 F.3d 225, 237 (1st Cir. 2005). This review
requires us to “examine the evidence in the light most favorable to
the plaintiff [to] determine whether there are facts and inferences
reasonably drawn from those facts which lead to but one conclusion
-- that there is a total failure of evidence to prove plaintiff's
case.” Acevedo-Garcia, 351 F.3d at 565 (internal quotation
omitted). We review a denial of a motion for a new trial for an
abuse of discretion, see Baron, 402 F.3d at 237, and will order a
new trial only if “the verdict is against the demonstrable weight
of the credible evidence or results in a blatant miscarriage of
justice.” Acevedo-Garcia, 351 F.3d at 565 (internal quotation
omitted).
1. Fajardo's liability
Fajardo argues that the district court erred in
concluding that there was sufficient evidence to support the jury's
finding that the city had been deliberately indifferent to the
rights of its citizens. Fajardo disputes the court's
interpretation of the police commissioner's testimony, and the
significance of the mayor's and Whitfield's testimony. Moreover,
Fajardo contends that the plaintiffs' theory, that Fajardo failed
to properly train its police, was proven false by Fajardo's
uncontested evidence demonstrating the training that Lebrón and
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Mangomé had received. Given this undisputed evidence, Fajardo
additionally argues that the plaintiffs failed to prove that a
deficient training program caused Whitfield's injuries. We agree
that the evidence was insufficient to establish a deficient
training program in Fajardo.
A city may only be held liable under § 1983 for its own
unconstitutional action. See Monell v. Dep't of Social Services,
436 U.S. 658, 691 (1978). This means that, under § 1983, a
municipal government will only be held liable when the “execution
of [the municipal] government's policy or custom . . . inflicts the
injury.” Id. at 694.
A city's policy of inadequately training its police force
can serve as a basis for § 1983 liability if the city's failure to
train “amounts to deliberate indifference to the rights of persons
with whom the police come into contact.” City of Canton v. Harris,
489 U.S. 378, 388 (1989). In this context, deliberate indifference
will be found where the municipality fails to provide adequate
training notwithstanding an obvious likelihood that inadequate
training will result in the violation of constitutional rights.
Id. at 390. The plaintiff must also prove that “the deficiency in
training actually caused the police officers' indifference” to the
public's constitutional rights. Id. at 391. A generalized showing
of a deficient training program is not sufficient. The plaintiff
must establish that the particular officers who committed the
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violation had been deprived of adequate training, and that this
specific failure in training was at least a partial cause of the
ultimate injury. See Young v. City of Providence, 404 F.3d 4, 26
(1st Cir. 2005).
The parties agree that the Puerto Rico Police Department
had promulgated regulations governing the proper use of deadly
force and that these regulations were applicable to the municipal
police as well as to the Commonwealth police.5 The district court,
however, found that there was a factual dispute as to whether
Fajardo had adopted these regulations and trained police officers
in accordance with them. The plaintiffs' primary evidence
establishing this claim was testimony by the mayor and the police
commissioner to the effect that there were no municipal regulations
concerning the use of deadly force. According to the court, the
jury could infer from this evidence, and from Whitfield's testimony
concerning the officers' conduct in violating his constitutional
rights, that the officers had not been properly trained in the use
of deadly force.
5
In its order denying the defendants' joint post-trial
motions, the district court took judicial notice of Commonwealth of
Puerto Rico Police Department General Order 95-13, but refused to
consider General Order 99-4, which had not been brought to the
court's attention until after trial. Fajardo argues that the
court's refusal to take judicial notice of the latter regulation
was error. Because Fajardo prevails on the issue of municipal
liability regardless of our resolution of this question, we bypass
this argument.
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Such an inference was not warranted on the undisputed
facts of this case. The undisputed evidence is that both officers
were in fact trained by the Puerto Rico Police according to the
policies of the Puerto Rico Police Department. General Order 95-
13, a Puerto Rico Police regulation enacted pursuant to the
Municipal Police Act,6 provided guidance concerning the use of
deadly force consistent with Tennessee v. Garner.7 The defendants'
evidence included diplomas certifying that both officers had
successfully completed the intensive preparatory course
administered by the Puerto Rico Police Department, certificates of
6
As a municipality of Puerto Rico, Fajardo is subject to the
Commonwealth's “Municipal Police Act.” See 21 P.R. Laws Ann. §
1061, et seq. Under the Act, all the members of a municipal police
force must complete “the basic training courses offered by the
School of Police Science of the Puerto Rico Police Academy.” 21
P.R. Laws Ann. § 1066. They must pass “an intensive preparatory
course which shall be designed in coordination with the
Commonwealth Police and which shall be administered by the
Commonwealth Police Academy.” 21 P.R. Laws Ann. § 1067(e). Local
police are not certified as “Municipal Police Officers” until they
meet the training requirements of the Commonwealth Police
Department. See 21 P.R. Laws Ann. § 1063.
7
General Order 95-13, in effect from 1995 until 1999,
provided, in relevant part:
1. When utilizing a firearm only the minimum amount of
force necessary to fulfill the mission shall be utilized.
2. The regulations weapon shall be considered a defense
weapon, NOT an arrest tool.
3. Any other means and/or alternative shall be utilized
before recurring [sic] to the use of the regulations
weapon.
4. Firing a firearm from or against a moving vehicle is
forbidden, unless the people in the other vehicle are
utilizing mortal physical force against the policeman or
other citizens.
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training received by both officers establishing that they had
participated in ongoing training in the proper handling and use of
firearms, and the testimony of Mangomé and Lebrón that they had
been trained concerning the constitutional standard for employing
deadly force. Lebrón and Mangomé specifically testified that they
had been trained that a police officer may only use deadly force
when the officer's life or the life of another person is in
danger.8 None of this evidence was disputed or impeached.9
Given this evidence of training, the plaintiffs bore the
burden of establishing a material factual issue with respect to
whether the training received did not include adequate instruction
on the proper use of deadly force. The plaintiffs' evidence failed
to raise such a dispute. Whether Fajardo promulgated its own
regulations is irrelevant to the lack of training claim, and the
plaintiffs' evidence does not otherwise rebut or contradict the
evidence that Lebrón and Mangomé were trained in accordance with
8
Mangomé testified that he had received training by the
Commonwealth Police at the academy and at refresher classes held at
the local police station concerning how to apprehend a fleeing
suspect. He testified that the training sessions taught him that
“[y]ou only fire the weapon once you feel your life or the life of
another is threatened.” Lebrón likewise testified that she was
trained that she could use her weapon “[a]s soon as I was subject
at any time to imminent danger.”
9
The plaintiffs argue that the verdict illustrates that the
jury disbelieved Lebrón and Mangomé. The verdict, however, only
indicates that the jury disbelieved the officers' self-defense
story. The award of punitive damages against Lebrón and Mangomé
suggests, to the contrary, that the officers were aware, or should
have been aware, that their conduct violated Whitfield's
constitutional rights.
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the Municipal Police Act and the related Police Department
regulations governing the use of force.
The testimony of the mayor and the police commissioner
does not create a factual dispute as to whether Fajardo had
actually adopted or enforced these regulations. The police
commissioner's testimony, which consisted of a portion of his
deposition testimony that was read into evidence, is insufficient
on its face to rebut the evidence of training in the record:
Q. Aside from the regulations is there any
written guideline for police officers . . . by
which they're given guidelines on the
excessive use of force or on the usage of a
firearm aside from the regulations?
A. The regulation does not specify telling a
person when it is going to be used and when it
is not going to be used. . . . In other
words, this is a matter . . . for the police
officer to determine himself at that time he
finds himself in a situation. In other words,
there's nothing in writing. There is no kind
of guideline that tells a police officer when
to use the force and when he is not going to
use it.
* * *
Q. In other words, that the guidelines that
the Fajardo Municipal Police have with regards
to when to use or not to use or when it's
adequate to use or not use a firearm do not
exist in writing?
A. No. For . . . no, no, definitely. That's
a matter that at the moment that the police
officer is protecting his life and protecting
the lives and properties which are his
functions. In other words, there's nothing in
writing with regards to that.
-22-
Q. Is there any policy or unwritten practice
on behalf of the Fajardo Municipal Police with
regards to when it is adequate or not to use a
firearm?
A. There's no practice nor any public policy
with regards to that, neither verbal nor in
writing.
(Emphasis added). On cross-examination, the police commissioner
explained that his deposition answers were
based on the questions that were posed to me
as to whether the municipality had anything in
writing with regards to the use of firearms.
And at that time I understood that the
question was in reference to the municipality
and not to the Municipal Police Force. . . .
In Puerto Rico Police regulations the usage of
firearms is set forth.
(Emphasis added).
The police commissioner's testimony explicitly noted the
existence of Puerto Rico regulations governing the use of force by
police. Indeed, the plaintiffs' inquiry began with the qualifying
phrase “aside from the regulations.” The police commissioner
merely conceded that, although there are Commonwealth regulations
governing the use of force, the municipality has not created a more
specific set of guidelines or standard operating procedures.
Rather, the police officer in the field is required to apply the
regulations to the specific situations in which he finds himself.
The police commissioner never suggested that Fajardo's police
officers are not trained with regard to the proper use of force.
The mayor's testimony, as to his unawareness of any municipal
-23-
regulations, is similarly unhelpful to the plaintiffs. At most, it
establishes that Fajardo did not promulgate its own set of
regulations; it does not, however, establish a policy of
inadequately training the Fajardo police force.
Without any independent evidence of an inferior training
program, the jury could not have inferred, merely from Whitfield's
testimony of the incident itself, that there was a policy or custom
of inadequate training in Fajardo. See Oklahoma City v. Tuttle,
471 U.S. 808, 823-24 (1985) (a single shooting incident
insufficient to establish municipal liability for inadequate police
training); Fabiano v. Hopkins, 352 F.3d 447, 452 (1st Cir. 2003)
(absent some other evidence of an unconstitutional policy or
custom, “a single incident of misconduct cannot provide the basis
for municipal liability under § 1983”).
Given the undisputed evidence of training, the plaintiffs
failed to satisfy the threshold burden of establishing either that
Fajardo failed to train Lebrón and Mangomé, or that the training
received by Lebrón and Mangomé was “inferior by the standards of
the profession.” Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir.
1989).10 Moreover, even were we to accept that the city's training
10
We pause to emphasize the distinction between the present
case and our recent decision in Young v. City of Providence, 404
F.3d 4 (1st Cir. 2005) (reversing the district court's award of
summary judgment to the city). In that case there existed material
factual disputes and inconsistent testimony regarding the extent of
police training. See id. at 27-28. Here, by contrast, the
evidence is uniform that officers Lebrón and Mangomé were trained
in the proper use of force.
-24-
program was lacking in some respect, there is nothing to indicate
that the city was deliberately indifferent to the rights of its
citizens. See DiRico v. City of Quincy, 404 F.3d 464, 469 (1st
Cir. 2005); Santiago, 891 F.2d at 382 (holding that evidence that
police officers only received four hours of training with regard to
constitutional issues did not establish “a 'conscious' policy to
train inadequately”).
The plaintiffs advance an alternative basis for holding
Fajardo liable: that the Fajardo police department fostered “a
culture of leaving it to the officer,” thereby granting its
officers carte blanche to exercise unfettered discretion in the
field. According to this theory, even if Fajardo's police officers
were properly trained, the Fajardo police department's
encouragement of its officers to make unrestricted on-the-spot
determinations about how much force to employ superseded any
training they had previously received. The plaintiffs argue that
Fajardo should be held liable for this unconstitutional “custom.”
There are two requirements to prove a claim grounded on
custom. First, the custom or practice must be attributable to the
municipality. That is, it must be “so well settled and widespread
that the policymaking officials of the municipality can be said to
have either actual or constructive knowledge of it yet did nothing
to end the practice.” Bordanaro v. McLeod, 871 F.2d 1151, 1156
(1st Cir. 1989). Second, the custom must have been the cause of
-25-
and “the moving force behind” the constitutional violation. Id. at
1157.
Plaintiffs point to three pieces of evidence supporting
their theory that Fajardo had an unconstitutional custom: (1) the
police commissioner's deposition testimony that it was up to
individual officers to determine the appropriate level of force;
(2) the mayor's testimony that he was unaware of any municipal
regulations governing the use of force; and (3) the fact that
neither Lebrón nor Mangomé were disciplined for the incident.
But again, even viewed in the light most favorable to the
plaintiffs, the mayor and the police commissioner's testimony does
not establish that Fajardo police officers had unfettered
discretion to employ deadly force. The police commissioner merely
testified that police officers in the field are given the
discretion to apply the regulations to the particular circumstances
that they face, and the mayor simply answered the plaintiffs'
narrow question: whether he was aware of any municipal regulations.
No reasonable juror could infer from the mayor's and the police
commissioner's testimony that the Fajardo police department gave
its police officers blanket authority to disregard the
constitutional limitations imposed on the use of deadly force.
Finally, the fact that neither Lebrón nor Mangomé was
disciplined for this incident, see Wierstak v. Heffernan, 789 F.2d
968, 975 (1st Cir. 1986) (finding the lack of an internal
-26-
investigation into allegations of excessive force by police
officers to be probative of the city's gross negligence), does not
provide a sufficient basis by itself to support the jury's verdict.
In Wierstak, among the probative evidence supporting municipal
liability was the fact that the city had never conducted “any sort
of investigation into the circumstances” of the plaintiff's
allegedly unlawful arrest. Id. at 975 (emphasis added). In this
case, however, there was an investigation into the shooting
incident. According to Mangomé, the investigation concluded that
Lebrón and Mangomé had been justified in their use of force. Given
that the question of whether Lebrón and Mangomé were justified in
firing at Whitfield was fact-based and was hinged on competing
versions of the events, it is not surprising that two different
fact-finders (the police investigators and the jury in this case)
came to two different conclusions. Standing alone, the lack of any
disciplinary charges against Lebrón and Mangomé is not probative of
a “well settled and widespread” policy or custom. See Santiago,
891 F.2d at 382. Nor does it establish deliberate indifference by
the city. See DiRico, 404 F.3d at 469.
-27-
2. The mayor's and the police commissioner's
liability11
As set forth above, the mayor and the police
commissioner, like the city of Fajardo, were held liable for
failing to promulgate regulations regarding the proper use of
deadly force, and for failing to adequately train the police in
accordance with such regulations. They argue, similarly to
Fajardo, that there was no evidence of deliberate indifference, nor
was there evidence of a causal link between the allegedly deficient
training and the injury to Whitfield.
Like municipal liability, supervisory liability cannot be
predicated on a respondeat superior theory. Barreto-Rivera v.
Medina-Vargas, 168 F.3d 42, 48 (1st Cir. 1999). Supervisors may
only be held liable under § 1983 on the basis of their own acts or
omissions. Id. Supervisory liability can be grounded on either
the supervisor's direct participation in the unconstitutional
conduct, or through conduct that amounts to condonation or tacit
authorization. See Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st
Cir. 1999). Absent direct participation, a supervisor may only be
held liable where “(1) the behavior of [his] subordinates results
in a constitutional violation and (2) the [supervisor's] action or
11
As Mangomé's immediate supervisor, Sergeant Lebrón was also
found liable under a theory of supervisory liability. Because we
uphold the district court's conclusion that Lebrón is liable as a
direct participant in the unconstitutional conduct, we do not
address her argument that she should not be held liable as a
supervisor.
-28-
inaction was 'affirmatively link[ed]' to the behavior in the sense
that it could be characterized as 'supervisory encouragement,
condonation or acquiescence' or 'gross negligence . . . amounting
to deliberate indifference.'” Hegarty v. Somerset County, 53 F.3d
1367, 1379-80 (1st Cir. 1995) (quoting Lipsett v. Univ. of Puerto
Rico, 864 F.2d 881, 902-03 (1st Cir. 1988)).
Our holding with respect to Fajardo's municipal liability
informs our analysis of the mayor's and the police commissioner's
supervisory liability. Because the plaintiffs failed to provide
sufficient evidence establishing that Fajardo's police officers
were inadequately trained, it follows that the plaintiffs failed to
prove that the mayor and the police commissioner were deliberately,
recklessly or callously indifferent to the constitutional rights of
the citizens of Fajardo. The plaintiffs failed to show that there
were any training deficiencies, much less that the mayor or the
police commissioner “should have known that there were . . .
training problems.” Febus-Rodriguez v. Bentancourt-Lebron, 14 F.3d
87, 92 (1st Cir. 1994). Moreover, as discussed above, the evidence
was insufficient to support the theory that the mayor or the police
commissioner had condoned an unconstitutional custom.12
12
Lebrón and Mangomé also request a new trial based on several
alleged evidentiary and trial management errors by the district
court. Because the defendants have entirely failed to present any
developed argumentation concerning these issues, we deem them
waived. See Acevedo-Garcia, 351 F.3d at 560-61 (“We have
steadfastly deemed waived issues raised on appeal in a perfunctory
manner, not accompanied by developed argumentation.”) (quotation
omitted); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
-29-
C. Damages
The jury, which decided to hold the defendants jointly
and severally liable, awarded Whitfield $4 million in compensatory
damages for his mental and physical damages and pain and suffering,
and Whitfield's parents $500,000 each in compensatory damages for
their emotional damages and pain and suffering.13 Additionally,
finding that the defendants “had acted with malice or with intent
or reckless indifference to violate . . . Whitfield's federally
protected constitutional rights” the jury awarded Whitfield $98,000
in punitive damages payable by each defendant in his or her
individual capacity: $15,000 each from officers Lebrón and Mangomé,
$18,000 from the police commissioner, and $50,000 from the mayor.
In their joint post-trial motion, the defendants argued that the
award of compensatory damages and punitive damages was excessive
and sought a remittitur. The district court denied the motion.
On appeal, the defendants argue that Whitfield's
compensatory damages award was grossly excessive in light of the
conflicting evidence concerning the nature and the extent of his
injuries. Particularly, they argue that there is little evidence
establishing the permanency of Whitifield's injuries. The
13
Whitfield's parents' supplemental state law claims were
brought under Article 1802 of the Civil Code of Puerto Rico --
Puerto Rico's general tort law statute. That statute allows a
plaintiff to collect damages from “a person who by an act or
omission causes damage [to the plaintiff] through fault or
negligence.” 31 P.R. Laws Ann. § 5141.
-30-
defendants also renew their argument that the award of $500,000 to
each of Whitfield's parents is grossly disproportionate to the
evidence of their mental or emotional pain and suffering, and
challenge the awards of punitive damages.14
Our inquiry on appeal is “limited to determining whether
the trial court abused its discretion in refusing to set aside the
verdict as excessive.” Acevedo-Garcia v. Monroig, 351 F.3d 547,
566 (1st Cir. 2003) (internal quotations omitted). While our
review of the punitive damages award is de novo, we will only alter
the award if “we find it certain that the amount in question
exceeds that necessary to punish and deter the alleged misconduct.”
Id. (internal quotation omitted). Because of our deference to the
jury's calculation of damages -- particularly in cases that involve
little or no economic loss -- we impose a heavy burden on the
14
The defendants also contend that the jury was erroneously
instructed that the defendants could be held liable not only for
the immediate injury resulting from the shooting, but also “for any
additional damages sustained as a consequence or result of
subsequent malpractice by those who provided medical care to
[Whitfield] in treating his injuries.” They argue that, under
Puerto Rico law, a defendant may only be held liable for a third-
party's malpractice when the medical treatment provided by the
third-party was reasonably required. See Rodriguez Sosa v.
Cerveceria India, 106 D.P.R. 479, 483 (1977); Mercedes v. Gobierno
de la Capital, 85 D.P.R. 552 (1962). The defendants claim that
Whitfield's own expert testified that the second operation was not
necessary. Therefore, the defendants contend, the court's
instruction was erroneous, and the court should have granted a
remittitur or a new trial on damages to correct the jury's award.
In our view, the expert's testimony could not ground a finding by
the jury that the second operation was beyond that which was
reasonably required. Thus, even if we assume arguendo that the
court's instruction was faulty, the error was harmless; the jury
could only have found as it did.
-31-
defendants to prove that the damage 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.” Id.
(internal quotations omitted); Grajales-Romero v. Am. Airlines,
Inc., 194 F.3d 288, 300 (1st Cir. 1999) (applying the above federal
standards for judging excessiveness in a Puerto Rico case). Thus,
we will not disturb a damages award merely because we find it
extremely generous, but will only reverse if we find the award “so
grossly disproportionate to any injury established by the evidence
as to be unconscionable as a matter of law.” Koster v. Trans World
Airlines, 181 F.3d 24, 34 (1st Cir. 1999).
1. Whitfield's compensatory damages
Although there is evidence that Whitfield suffered
through a terrifying and painful experience, and there is evidence
that at least some aspects of his injuries are permanent, we
conclude that an award of $4 million dollars solely for his mental
and physical pain and suffering15 is unconscionable as a matter of
law in this case.
15
The plaintiffs' brief argues that some portion of Whitfield's
award is attributable to economic damages for lost income. The
jury's award, however, clearly did not contemplate economic
damages. The verdict form and the jury instructions, which were
not objected to, only provided for “mental or emotional suffering
or physical damages or pain and suffering.” Moreover, the evidence
of lost income was not sufficiently specific to ground an award on
that basis.
-32-
The defendants cite to a number of cases in attempting to
illustrate the excessive nature of Whitfield's damages. See
Anthony v. G.M.D. Airline Services, Inc., 17 F.3d 490 (1st Cir.
1994) (overturning a $571,000 jury award to a plaintiff who
sustained a leg injury resulting in a 20 percent whole-body
disability); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st
Cir. 1989) (upholding a jury award of $4.5 million to a plaintiff
who was rendered paraplegic after being shot in the back by
police); Torres v. Kmart Corp., 233 F. Supp. 2d 273 (D.P.R. 2002)
(upholding a jury award of $1.6 million to a plaintiff whose slip-
and-fall resulted in a permanent back injury); McCollum v.
McDaniel, 136 F. Supp. 2d 472 (D. Md. 2001) (reducing an award of
$3.5 million to $1.25 million in an excessive force case where the
plaintiff lost an eye and suffered permanent impairment to one
hand). We cannot just rely on these cases, however, because they
are all distinguishable from the present case in important
respects. For instance, although Gutierrez-Rodriguez presents the
most comparable factual circumstances, it is not particularly
helpful as a comparison because it was decided 16 years ago.
Moreover, our “paramount focus in reviewing the damage award must
be the evidence presented at trial,” for we will not disturb a jury
award “merely because the amount of the award is somewhat out of
line with other cases of a similar nature.” Gutierrez-Rodriguez,
882 F.2d at 579-80.
-33-
The evidence established that Whitfield was shot twice in
the back of the left leg, the first shot entering the back of his
calf, and the second shot entering his thigh and shattering his
femur. According to Whitfield, he lay face-down bleeding in the
street for what “seemed like” 15 minutes before the police came to
him.16 They then handcuffed him and did not provide him any medical
treatment until the ambulance arrived. When Whitfield arrived at
the Fajardo hospital, the police threatened to withhold medical
attention until he would give a statement. Whitfield, still
suffering “excruciating” pain, waited eight hours for an assessment
of his injuries before he was transferred to Puerto Rico Medical
Center where he waited another eight days for his first surgery.
The following day he was transferred to the Naval hospital where
doctors performed a second surgery on Whitfield's leg.
There is evidence that some of Whitfield's injuries are
permanent. Whitfield's expert testified that to correct
Whitfield's shattered femur, doctors had to attach a metal rod and
a metal plate to his femur using ten screws. He further testified
that the bullet that entered Whitfield's calf partially ruptured
the nerves in his calf causing permanent neurological damage and
resulting in a limited range of motion in Whitfield's left ankle.
The expert also testified that Whitfield “has permanent atrophy in
the outer . . . aspect of his left thigh.” Finally, he testified
16
The officers' testimony establishes that he laid in the
street unattended for at least 8 to 10 minutes.
-34-
that a weakened ligament in Whitfield's knee, combined with the
permanent atrophy in his thigh, leaves Whitfield with a weak knee
that will continue to be a problem for Whitfield in the future.
The result of these injuries, according to Whitfield's
expert, is a 48 percent impairment of his left lower extremity and
a 19 percent impairment of his entire body. Because Whitfield's
weakened ankle has a tendency to roll and his weakened knee has a
tendency to give out, he is unable to participate in many different
activities and sports. Whitfield also has a condition in his left
leg and foot called “disestesias,” which is an “abnormal sensation
of pin, needle, burning, unpleasant sensation, [and] itching.”
Whitfield testified that when he wakes up in the morning his leg is
often sore and he gets cramps in his foot. Whitfield's parents
also testified that they frequently observe their son in pain.
While some evidence tends to undercut Whitfield's claims
-- the concession of Whitfield's expert that Whitfield can walk
normally, Whitfield's admissions that ten months after the incident
he passed the Navy's physical readiness test by running a quarter-
mile in 2 minutes and 20 seconds, that some months later he was
able to lift a 40-pound tire off a four-foot-high stack of tires
while working in the automotive department of a wholesale retailer,
and that he has not taken any pain medication since May 2002 -- the
jury was not required to accord significant weight to this
evidence. Nevertheless, viewing the evidence in the light most
-35-
favorable to Whitfield, we conclude that the award of $4 million
was grossly disproportionate to the evidence of Whitfield's
injuries. In closing argument before the jury, Whitfield's
attorney stated that “the kind of pain and suffering that this
young man is going through, and will go through, is worth at least
$2 million.” Although this statement was an attempt to set a
floor, not a ceiling, it acknowledged that an award of $2 million
would, at a minimum, sufficiently compensate Whitfield for his pain
and suffering. We can accept that the jury might award a higher
amount, but we cannot divine the basis for an award that doubles
the amount that the plaintiff had conceded would be sufficient
compensation. After a careful review of the record, we conclude
that the evidence of Whitfield's physical and mental pain and
suffering would not support a maximum recovery in excess of $3
million. See Koster v. Trans World Airlines, 181 F.3d 24, 36 (1st
Cir. 1999) (setting forth the “maximum recovery rule” whereby this
court sets a remittitur amount that “represents the highest amount
for which there is adequate evidentiary support”). We therefore
remand to the district court with instructions to vacate the $4
million award and order a new trial on compensatory damages for
Whitfield, unless Whitfield agrees to remit $1 million.
2. Whitfield's parents' compensatory damages
There is a case that is sufficiently similar and close in
time to be useful as a comparison in assessing the proportionality
-36-
of Whitfield's parents' compensatory damage awards. In Smith v.
Kmart Corp., 177 F.3d 19 (1st Cir. 1999), we ordered that an award
of $250,000 to the husband of a woman who had been injured by a
falling ice cooler be remitted to $100,000. Although there are
aggravating circumstances in this case that were not present in
Smith -- the fact that Whitfield was shot by police, that his
parents were forced to travel from Ohio to Puerto Rico to see their
son in the hospital, and that Whitfield's father was himself just
recovering from surgery -- there were several aggravating
circumstances in Smith that are not present here. Most notably,
the plaintiff in Smith was present at the scene of the accident and
testified to his horror in watching as his wife was struck and lost
consciousness. See id. at 32. He testified that he performed CPR
on his wife and thought, at various times, that she was either dead
or paralyzed. See id. Moreover, he testified to all of the
medical visits on which he had accompanied his wife, that he
constantly worried about her condition, and that he was emotionally
and mentally tired. See id. The plaintiff in Smith, who had a
loss of consortium claim, testified that due to his wife's injuries
he was forced to do more housework and to work longer hours at his
job, and that his relationship with his wife had lost all of its
intimacy. See id.
Here there is no loss of consortium, nor is there any
specific evidence showing that Whitfield's parents do not enjoy the
-37-
same quality of life they enjoyed before the incident. There is
only generalized testimony that his mother and father were “very
upset” when they learned what had happened. Gayle Whitfield
testified that she was so distraught that she could not work for a
month. She also testified that she has observed her son in pain
and that she worries about the difficulties he will encounter in
the future. Terry Whitfield testified that he was shocked by the
news that his son was shot. The father similarly testified that he
has witnessed his son in pain and that he worries about his future.
The parents did not, however, provide any expert testimony
concerning their emotional distress. See Koster, 181 F.3d at 35
(testimony from mental health expert not required to prove
emotional distress, but absence of such evidence is relevant to
amount of the award).
This generalized evidence of Whitfield's parents'
emotional pain and suffering “does not rise to a level commensurate
with the amount of damages awarded.” Smith, 177 F.3d at 32. We
therefore find the jury's award of $500,000 to each of Whitfield's
parents to be grossly excessive. Under the maximum recovery rule,
see supra, we order a new trial on compensatory damages for
Whitfield's parents, unless they agree to remit their awards in
excess of $100,000 each.
-38-
3. Punitive damages
Because we vacate the verdicts as to the mayor and the
police commissioner, we also vacate their portion of the punitive
damages award. Thus, we vacate the award of $50,000 in punitive
damages from the mayor and the award of $18,000 in punitive damages
from the police commissioner.
As to officers Lebrón and Mangomé, the defendants argue
that there should be no punitive damages because there was no
evidence presented of a pattern of misconduct on the part of the
officers. This argument is beside the point. The jury had
sufficient evidence to find, and did find, that the officers acted
with “malice or with intent or reckless indifference” to
Whitfield's constitutional rights. A $15,000 award of punitive
damages against each officer can hardly be considered excessive
given the facts of this case. The defendants also suggest that the
punitive damage awards do not reflect an intention of the jury to
deter future misconduct, but rather were their way of apportioning
the damages “to let [the defendants] know who was responsible for
what percent.” This argument is purely speculation and is
contradicted by the jury's verdict. The special verdict form gave
the jury the option of imposing liability jointly and severally to
all defendants or in individual amounts as to each defendant. The
jury chose to impose liability jointly and severally. Had the jury
wished to apportion the fault, it had the ability to do so.
-39-
III.
In sum, we affirm the verdicts and the award of punitive
damages against officers Lebrón and Mangomé, we vacate the verdict
against the city of Fajardo, and we vacate the verdicts and the
award of punitive damages against mayor Meléndez-Rivera and police
commissioner Álvarez-Monge. We further vacate the compensatory
damage awards and remand to the district court for a new trial on
compensatory damages for each of the three plaintiffs, unless
Justin Whitfield agrees to accept a remittitur of his $4 million
award to $3 million, Terry Whitfield agrees to accept a remittitur
of his $500,000 award to $100,000, and Gayle Whitfield agrees to
accept a remittitur of her $500,000 award to $100,000. Each side
bears its own costs.
It is so ordered.
-40-
Whitfield v. Melendez-Rivera
Court: Court of Appeals for the First Circuit
Date filed: 2005-12-06
Citations: 431 F.3d 1
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