Civil vs. Criminal Distinction
"Our Federalism"

Section 1983 Damages -- Part One

When a police officer get tagged with a civil verdict in a case arising under 42 U.S.C. Section 1983, who really pays?

I've won dozens of these cases and I have never seen a case in which the tortfeasor himself or herself pays. But I have seen a lot of game playing.

A dozen years ago I won a case against two Connecticut State Troopers. They gave a man a gratuitous kick to the, er, hm, family jewels. No permanent injuries. But the jury awarded compensatory and punitive damages in the amount of $50,000. I was thrilled; so was the client.

Then came the remittitur motion. The defendants' lawyer claimed that the sum was excessive, given the officers' income and assets. Of course, no such evidence had been presented.

Smelling a rat, I subpoenaed the governor, the head of the state police, the head of the state police union, and everyone else with a high-powered pulse I could think of to a hearing. That yielded a motion to quash by the Attorney General's office. What took place at the hearing on that motion taught me bundles.

The State provided the troopers a defense under a reservation of right to decline coverage. (A.k.a. free legal defense.) The State's practice at the time was to evaluate coverage decisions post verdict -- long after a judgment had entered. A committee would evaluate the verdict to determine whether the conduct was so egregious as to decline to step in and pay the bill.

When pressed by the judge, the Assistant Attorney General bringing the motion to quash could not think of a case in which coverage was ever declined. No decision had yet been made on whether to provide coverage in the case I had just won.

I argued that the remittitur motion was little more than a shell game. The State was apparently trying to hide behind the meager assets of the defendants in an effort to reduce a judgment it fully intended to pay. The judge ordered the AG to report back with a decision on coverage, and deferred ruling on the remittitur motion.

Several weeks later, the State reported it would underwrite the constitutional tort, effectively serving as a silent insurer of the unlawful conduct of its troopers. The remittitur motion was denied as moot, and the judgment was paid, with attorney's fees and interest.

Lesson? Things are rarely what they appear in terms of damages in 1983 actions. In Part II of this post, I will tell the strange tale of Lee v. Edwards, a case in which the United States Court of Appeals for the Second Circuit went out of its way to reduce a damages award, even when the defendant's lawyer stipulated that the municpal employer would pay the damages.

Stay tuned ...

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