Damages for Violations of Constitutional Rights

1. Damages for Violations of Constitutional Rights • Carey v. Piphus: SCT says it is inappropriate to presume damages as a consequence of a constitutional violation. P must show actual harm stemming from the violation. • P’s essentially have to do what Levka P did – show some tangible harm stemming from constitutional violation • The PiphusCourt dances around the question of whether constitutional rights have an innate value. • If they do, shouldn’t we compensate for violation of a right? • Difficult valuation issues arise if we compensate for a right violation without actual damages • If they don’t, what incentives do government officials have to refrain from violating rights? • Maybe none if you think damages are the best deterrent & P’s won’t often have tangible damages • But P’s can still get punitive damages, injunctions, declaratory judgments & atty’s fees

2. Goals of Punitive Damages • Punishment • Notions of public morality and “just deserts” require that Ds “pay” for their bad actions • Deterrence • Compensatory damages, criminal sanctions and/or government safety standards don’t sufficiently deter the conduct at issue so punitive damages are necessary. • Focus is on D’s behavior not P’s losses

3. Why don’t compensatory damages, criminal fines, safety standards sufficiently deter? • Difficulty of measuring some damages may cause under compensation & under deterrence • Some wrongs are small but nevertheless outrageous (damage awards may not deter) • E.g., Levka – strip search of all female arrestees • Some behavior is extremely profitable (beyond awards of compensatory damages) • Some Ds profit in ways that compensatory damages can’t account for – i.e., pleasure at causing another pain • Criminal fines are usually quite small (even smaller than compensatory awards) • Safety standards are often not enforced by administrative officials & fines are often small

4. Jury Instructions Regarding Punitive Damages • Courts have recognized legitimacy of punitive damages for centuries. But such damages sit uneasily within the notion of civil compensation. So courts have also attempted to ensure that they are not grossly excessive or a result of bias or prejudice toward the defendant. • Possible approaches to controlling punitive damage awards (usually seen in jury instructions or post-verdict judicial review) • Epithet approach • Factors approach • Multipliers (as instituted by SCT in Exxon)

5. Jury instruction using a typical “epithet” approach: • Missouri’s standard for awarding punitive damages: • D's conduct must be outrageous because of “evil motive or reckless indifference.” • Intentional tort • Jury instruction (MAI 10.01) – “If you believe D’s conduct was outrageous because of evil motive or reckless indifference to the rights of others” in addition to compensatory damages “you may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendant and to deter defendant and others from like conduct.” • Recklessness • Jury Instruction (MAI 10.02) – “If you believe D’s conduct shows complete indifference to or conscious disregard for the safety of others” in addition to compensatory damages “you may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendant and to deter defendant and others from like conduct.” • If the jury in Exxon were instructed under an epithets approach, how would Exxon fare? What did Exxon do? Is it, should it be, responsible for Hazelwood?

6. Jury instruction using a “factors” approach • Some states have juries consider various factors to determine whether punitive damages should be awarded. Such factors can include: • Actual/likely harm from D’s conduct • Reprehensibility of D’s conduct • Profitability of D’s conduct • Financial condition of D • Amount of compensatory damages • Other possible criminal or civil penalties for D’s conduct • Are these factors relevant? Prejudicial? Distracting? • Is this approach better than the “epithet” approach? • Would Exxon fare differently under this approach than under the epithet approach?

7. Exxon – The SCT’s multipliers approach • Unlike the “epithet” or “factors” approach where court gives a somewhat nebulous jury instruction, Exxon SCT used a “multipliers” approach. • This approach ONLY applies in federal courts when they act as common law courts (i.e., maritime cases). It does NOT supplant particular state court approaches. • Why does the SCT use this approach? • Why does SCT use a 1:1 ratio as the appropriate ratio rather than some of the higher ratios seen in legislation (i.e., 3:1, 5:1)? • SCT says that a 1:1 ratio is appropriate only for “this particular type of case” – what type of case is that? When would a different ratio be appropriate? • Should courts be in the position of imposing ratios?

8. Preventing or Limiting Excessive Punitive Damages – Other Judicial Tools • Higher standard of proof– majority of states now require “clear and convincing proof” of D’s state of mind before punitive damages can be imposed • Missouri – Rodriguez v. Suzuki Motor Corp (1996) • Higher threshold for respondeat superior liability– Half the states require managerial employees to be implicated in decisions while the other half allow punitives with ordinary vicarious liability principles • Missouri appears to be a respondeat superior state • Restricting awards in multiple victim cases– mass tort cases involve hundreds of victims. Should all get punitive damages or only the first to sue? • Courts generally reject the latter preferring to take possible other awards into account when setting the amount of punitives. • Review jury verdicts using a FACTORS approach (like those seen in jury instructions) • Remittitur

9. Legislating Damages to Limiting Punitive Damages • Caps on damage awards • Mo. Rev. Stat. §510.265 – Limits punitive damages to $500,000 or 5x net compensatory damage award • Bifurcated trial • Mo. Rev. Stat. §510.263– parties can request bifurcated trial. No evidence of D’s wealth admissible at liability stage. • Credit for punitive damages previously paid • Mo. Rev. Stat. §510.263– post trial motion allows D to prove up punitive damages paid arising out of the same conduct. If successful, D gets credit on any punitive damages awarded in this trial • Mo. Rev. Stat. §537.067– D only severally liable for percentage of punitive damages • Pay portion of punitive damages to the state • Mo. Rev. Stat. §537.675– State has lien on 50% of all final judgments awarding punitive damages