Section 1983 is designed to compensate and deter constitutional violations by state and local officials. The damages phase of a §1983 action may present a variety of challenging issues. The Tenth Circuit's recent decision in Burke v. Regalado, 935 F.3d 960 (10th Cir. 2019) provides valuable analyses of several of these issues. The decision spans a whopping 104 pages in the Federal Reporter, and, in addition to damages, tackles numerous procedural, evidentiary, and liability issues.

This column focuses on three major damages issues from the Burke case: (1) the propriety of plaintiff's counsel's "send a message" closing argument; (2) awards of punitive damages against supervisory officials who were not directly involved in violations of the plaintiff's constitutional rights; and (3) the "setoff" issue of whether a court should reduce the jury's award of compensatory damages against nonsettling defendants by the amount of a settlement with one of the defendants.

Background

Here is how the Burke case came about: In 2011, police officers in Oklahoma responded to a call that Elliott Williams was engaging in "disruptive behavior" and arrested him for "obstructing an officer." The next morning Williams was jailed at the Tulsa County jail. "Shortly after his booking, he severely injured his neck, causing lower body paralysis. No one treated his injury. Despite his frequent complaints of pain and paralysis, no one transported him to a hospital. He remained immobile for five days, lying on his back in various cells at the jail and died of complications from the neck injury." 935 F.3d at 980.

Burke, the administrator of Williams's estate, brought suit in federal district court under §1983 alleging that jail detention officers and medical providers' deliberate indifference to Williams's serious medical needs violated the Due Process Clause of the Fourteenth Amendment. The defendants included Sheriff Glanz in his individual and official capacities. Glanz resigned during the litigation and his successor, Vic Regalado, was substituted as a defendant on the official capacity claim. An official capacity claim is tantamount to a claim against the municipality, Tulsa County. The complaint also named as defendant Correctional Health Care Companies (CHC), which had been hired by the County to provide medical services at the jail.

During the litigation the plaintiff and CHC reached a "confidential settlement." The jury awarded the plaintiff $10 million compensatory damages against Sheriff Glanz in his personal capacity and Sheriff Regalado in his official capacity (the municipal liability claim), "and $250,00 in punitive damages against Glanz in his individual supervisory capacity." 935 F.3d at 980. The district court denied the defendants' post-trial motions to, inter alia, disclose the plaintiff's confidential settlement agreement with CHC, and (2) to apply a setoff of the jury's award of compensatory damages by the amount of the CHC settlement.

'Send a Message'

We start with the "send a message" issue. During summation plaintiff's counsel stressed the severe harm Mr. Williams suffered and the "cruelty" of the defendants' behavior and asked the jury to return a verdict "commensurate with the injustice." The circuit court said that summation arguments invoking calls for

"justice 'for a wrongdoer and vindication' for a victim …. are commonplace in courtroom argument. '[C]losing argument need not, nor should be, a sterile exercise devoid of passion. Parties are entitled to have someone speak with eloquence and compassion for their cause without constituting reversible error.'" Burke, 935 F.3d at 1029 (quoting Whittenburg v. Werner Enterprise, 561 F.3d 1122, 1133 (10th Cir. 2009)).

But plaintiff's counsel may have crossed the line when he asked the jury to award compensatory damages not only to compensate Mr. Williams for his injuries, but also to deter future constitutional violations. Plaintiff's counsel argued in summation:

"Your job is to send a message with compensatory damages that no one ever has to experience that again."

"…. [Y]ou can prevent this, you can deter this from happening.… so that somebody [else] doesn't have to go through what Elliott Williams went through .…"

"The only way to [hold the County accountable] is to award a verdict of historical significance …. A jury award of five or ten million dollars will not have an impact on the Tulsa County's Sheriff's Department."

The court assumed without deciding that these remarks were improper because (1) compensatory damages must be based upon the concept of compensation for actual injuries suffered, and not on deterrence; and (2) while deterrence (and punishment) are functions of punitive damages, §1983 law only allows punitive damages against a state or local official in her personal capacity, Smith v. Wade, 461 U.S. 30 (1983). Municipalities are absolutely immune from punitive damages. City of Newport v. Fact Concerts, 453 U.S. 247 (1981).

"Send a message" arguments are clearly proper on a claim for punitive damages against an officer in his personal capacity. Consider King v. Macri, 933 F.2d 294 (2d Cir. 1993), where the plaintiff asserted §1983 malicious prosecution and excessive force claims. Plaintiff's counsel in summation urged the jury to award punitive damages so the defendants

"will no longer think they're above the law, so that they won't think they can do whatever they want, so that they won't think that because they have a badge and they have a uniform they can violate people's rights. [Punitive damages will send] that same message to others in a position to abuse their authority."

The defendants in King argued that they were unfairly prejudiced by these remarks by enhancing the jury's award of punitive damages, especially because the trial in the case occurred shortly after the California state court trial of the police officers accused of beating Rodney King. The circuit court rejected defendants' argument: "Similar remarks are made in summations in most police misconduct trials and are entirely appropriate." 933 F.2d at 299.

The defendants in Burke argued on appeal that plaintiff's summation also violated (1) the "Golden Rule," which bars a tort plaintiff's attorney from asking the jurors to place themselves in the plaintiff's position, Burke 933 F.3d at 1030-31; and (2) the rule prohibiting trial counsel from giving a personal opinion of the justness of a case, a witness's credibility, or a civil litigant's culpability. Id. at 1031; id. at 1032 (noting that the line between proper and improper "personal opinion" statements is unclear). The court found that even if plaintiff's counsel's summation "exceeded permissible bounds," any error did not improperly influence the jury verdict and thus did not prejudice the defendants. See Burke, 935 F.3d at 1026-34. (applying three Whittenburg v. Werner Enterprises factors, namely, (1) extent of improper remarks; (2) any curative actions taken by district court, and (3) the size of the verdict). The improper comments appeared only "sporadically over the course of 40 pages of closing argument"; the district court gave an accurate instruction on compensatory damages; and the jury's award of damages was not so excessive "to suggest that it was the product of improper remarks rather than the evidence." 935 F.3d at 1034.

Punitive Damages Against Supervisory Official

The second major damages issue in Burke was whether §1983 punitive damages may be awarded against a supervisory official in his personal capacity even though the supervisor was not directly involved in subordinates' violations of plaintiff's constitutional rights. The circuit court agreed with near unanimous circuit court authority allowing punitive damages in these circumstances. 935 F.3d at 1037-38 and 1037 n.62 (citing several circuit court decisions). Interestingly, the Burke court cited with a "But see" signal the Second Circuit's decision in Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989). In Meriwether, the plaintiff prisoners asserted retaliation and excessive force claims, and the circuit court upheld the district court's decision setting aside the jury's award of punitive damages because of the "defendants' lack of personal involvement in the beatings and the lack of evidence that they acted with evil motive or intent …" That is hardly a ringing endorsement for the view that punitive damages are categorically unavailable against a supervisory official who did not directly participate in subordinates' constitutional wrongdoing. The more likely implication is that punitive damages may be awarded if there is evidence that the supervisory officer acted with malice or callous indifference to the plaintiff's constitutional rights, even if the supervisor was not directly involved in the constitutional wrong.

The defendants in Burke v. Regalado also challenged the size of the jury's awards of compensatory and punitive damages. The court found that while the $10 million compensatory damages award was "large", it did not shock the judicial conscious. Nor was the $250,000 award of punitive damages "grossly excessive." Applying the three Gore factors—(1) reprehensibility; (2) ratio of punitive damages to compensatory damages; and (3) civil penalties authorized or imposed in comparable cases (BMW of North America v. Gore, 517 U.S. 559 (1996))—the circuit court found that "the evidence supported a finding that Sheriff Glanz's conduct was reprehensible, the punitive damages was only a [2.5%] fraction of the total [$10 million compensatory] damages, and the amount was not "unprecedented " for §1983 supervisory liability. 935 F.3d at 1039.

'Setoff' for Nonsettling Defendants

The fundamental "setoff" issues are whether the damages recovered by a plaintiff in a settlement with one defendant should operate to reduce the liability of the nonsettling defendant(s) and, if so, by how much. In Burke the issue was whether the undisclosed amount of damages recovered by the plaintiff in the settlement with CHC should have reduced the liability of the nonsettling Sheriffs for compensatory damages. No setoff may mean that the plaintiff will get a windfall; setoff may mean that the nonsettling defendants get a windfall. The §1983 setoff issue is one tough cookie.

For starters, it is unclear whether the right to a setoff in a §1983 action should be governed by federal or state law. When federal law is "deficient" on an issue in a §1983 action, 42 U.S.C. §1988(a) instructs the federal courts to apply state law as long as the state law is not "inconsistent" with the policies of §1983. There is no federal statute or clear federal common law governing the right to a setoff in §1983 actions. But there is U.S. Supreme Court decisional law providing that the liability of nonsettling defendants should be calculated by reference to a jury's allocation of proportionate responsibility rather than by giving nonsettling defendants credit for the dollar amount of the settlement. McDermott v. A Clyde, 511 U.S. 202 (1994). McDermott is an admiralty case, but the Supreme Court's decision is based on general tort principles. So, there is federal setoff law, but it is not specific to §1983. Does this mean that §1983 law is "deficient" on this issue?

In Restivo v. Hesseman, 846 F.3d 547 (2d Cir. 2017), cert. denied, 138 S. Ct. 644 (2018), the majority found federal §1983 law deficient and turned to the New York setoff statute, but found it inconsistent with the policies of §1983. The dissent found that federal law was not deficient because it encompasses a rule against double recovery. Restivo, 846 F.3d at 593-97 (Livingston, J., dissenting).

Most decisions have adopted the §1988(a) state law approach, as did the Tenth Circuit in Burke v. Regalado. 935 F.3d at 1040-48. But the court in Burke injected another complication into the equation: Should a federal court inquire whether the state's setoff law categorically conflicts with §1983's policies, the approach apparently taken in Restivo, or should it inquire whether the state setoff law as applied conflicts with §1983's policies, an approach the Burke court found apparently employed by the panel opinion in Dobson v. Camden, 705 F.2d 759 (5th Cir. 1983), which was vacated on rehearing, 725 F.3d 1003 (1984) (en banc)?

The circuit court in Burke found the as applied approach preferable because the "categorical approach fails to recognize that the state law setoff in a given case may not conflict with §1983's goals, depending on the size of the settlement." 935 F.3d at 1046 (footnote omitted). In the author's view, the as applied approach is at odds with the Supreme Court's decision in Robertson v. Wegmann, 436 U.S. 584 (1984) that to determine whether state survival law is compatible with §1983, the pertinent question is whether the state survival policy is generally compatible with the policies of §1983, not whether the result in a particular case is compatible.

The circuit court in Burke could not determine whether the application of the Oklahoma setoff statute was compatible with §1983 without knowing the amount of the settlement agreement. "Because it was an abuse of discretion for the district court to deny the Sheriffs' motion for setoff without knowing the terms of the CHC settlement, the [district] court also abused its discretion by denying discovery of the settlement agreement." 935 F.3d at 1047-48; see also id. at 1048 ("We leave to the district court how to compel disclosure of the CHC settlement while safeguarding the confidentiality of the agreement.").

Finally, we point out that Restivo raised a different setoff issue than that in Burke, namely, the Restivo plaintiffs settled with a non-party, the state of New York, that was not even a suable §1983 defendant. Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) (state is not a suable §1983 person).

Restivo was a §1983 wrongful conviction case in which the jury awarded each of the two plaintiffs, John Restivo and Dennis Halstead, compensatory damages of $18 million against the estate of Detective Joseph Volpe. The Second Circuit held that Volpe's estate was not entitled to a setoff of the $2.2 million in compensation to each plaintiff received in a settlement with New York state in a New York Court of Claims action. The circuit court found that New York state law, which provides either for a dollar-for-dollar setoff, or a setoff of the settling tortfeasor's equitable share of damages, whichever is greater, "is inconsistent with the deterrent goal of Section 1983, as it allows non-settling tortfeasors to bear less than the full cost of the harm they inflicted if settling tortfeasors settle for more than their proportionate share of liability." Restivo, 846 F.3d at 386. Nor was Volpe entitled to a "proportionate reduction" based on the settling party's proportionate fault because the state of New York had not been "found to have been at fault, as it was sued under, and settled pursuant to state law that provided for compensation without showing of fault." Id.

Martin A. Schwartz is a professor emeritus of law and the author of a multi-volume Section 1983 Litigation treatise published by Wolters Kluwer Law and Business.