Appeal from a judgment of the District Court for the Southern District of New York (Robert J. Ward, Judge) in an action brought under 42 U.S.C. § 1983 (Supp. V 1981) awarding plaintiff compensatory and punitive damages for the shooting death of plaintiff's son, and cross-appeal by the plaintiff challenging the adequacy of the District Court's award of attorney's fees. The judgment is vacated in part, the order awarding attorney's fees is affirmed, and the case is remanded for retrial of the claim for punitive damages.
Before: MANSFIELD, MESKILL, and NEWMAN, Circuit Judges.
In this appeal four New York City police officers challenge a $200,000 punitive damage award assessed against them jointly in the June 1, 1982, judgment of the District Court for the Southern District of New York (Robert J. Ward, Judge). The $200,000 punitive damages award was levied by a jury after it found that the four officers had violated the constitutional rights of Gregory McFadden in an attempted arrest that resulted in McFadden's death. This suit was filed by Ivy McFadden, Gregory McFadden's mother and administratrix, pursuant to 42 U.S.C. § 1983 (Supp. IV 1980). Because we conclude that in section 1983 actions liability for punitive damages and their amount must be determined on an individual basis, we vacate the award of punitive damages and remand for a new trial limited to punitive damages.
On February 18, 1980, several New York City police officers conducted a "decoy operation" at a busy intersection in the Bronx. Officer Patricia Hear, while making a telephone call in an open booth, wore a shoulder bag that was left open revealing a wallet containing several dollar bills. Gregory McFadden approached Officer Hear, pretended to make a phone call in the next booth, and then snatched the wallet from her bag. As McFadden walked away from the telephone booths, Officer Michael Ciravolo and Detective Juan Sanchez, two plainclothesmen who were stationed in nearby stores, intercepted him. Ciravolo grabbed McFadden's right arm, Sanchez his left. They identified themselves as police officers and asked McFadden to accompany them away from the intersection to be arrested.
At this point, the witnesses' versions of the episode differ. According to the police officers, McFadden began to struggle as Sanchez was handcuffing him. Despite the two officers' efforts to restrain their suspect, McFadden continued to fight. Officer Hear, seeing the struggle develop, ran over to the three men and attempted to hit McFadden with her shoulder bag and handcuffs, but was knocked away by the group, which was spinning in a circle. Sergeant Robert Pezzano, the senior police officer supervising the operation, then entered the fray and grabbed McFadden's head. By bending down, McFadden broke Pezzano's grip. As he bent over, McFadden caught sight of Officer Ciravolo's gun. McFadden grabbed the gun and pointed it at Ciravolo's groin. Ciravolo yelled, "He has my gun," and jammed his hand between the gun's hammer and cylinder to prevent it from firing. After a few moments, Ciravolo's grip on the gun loosened, as McFadden raised the weapon to Ciravolo's chest. Ciravolo screamed, "I can't hold on any more," and Sergeant Pezzano fired his gun into McFadden's back. McFadden was taken to Union Hospital, where he died.
The plaintiff's main witness gave a markedly different version of the shooting. The witness testified that he first saw McFadden accompanied by three men who the witness did not realize were police officers since they were in plain clothes.Ten to twelve feet away from where the witness was standing, the officers stopped McFadden and grabbed his arms. About a half a minute later one of the officers said, "You tore my jacket," and a brief tussle ensued. The officers forced McFadden up against a wall, with one officer on either side of McFadden holding his arms and another officer in front of McFadden. The officer in front of McFadden, whom the witness identified as Officer Ciravolo, hit McFadden in the face for three or four minutes. According to the witness, up to this point, McFadden did not try to resist or escape the punches, but when he was about to be kneed in the groin, he said, "The hell with this" and "Kill me." The struggle between McFadden and the officers then resumed, and the next thing the witness heard was one of the officers saying either "He had my pistol" or "He has a gun." At this point, a woman (whom the witness could not identify as Officer Hear) jumped into the fight and tried to hit McFadden with what the witness thought was "something... that looked like a billy." Moments later, while turned away from the struggle, the witness heard a shot. When he looked back, he saw McFadden lying face down on the ground with a handcuff on one hand. At no time did the witness see a gun in McFadden's hand.
Two other eyewitnesses gave slightly different versions of the shooting. A woman who was watching from across the street testified that she saw two men holding McFadden and a woman hitting him with her purse. Members of the group were speaking loudly, but the woman could not understand what they were saying. After a short struggle, there was a shot. Another witness who testified for the defendants said that he saw McFadden fight with two policemen. According to this witness, while McFadden was struggling, a woman hit him with a black object that the witness identified as either an umbrella or a book. Another officer came to help the other three.This witness testified that he saw McFadden holding a gun, which the officers were trying to take away from him. In the course of the struggle, McFadden fell to the ground, still holding the gun. According to this witness, McFadden was shot while he was lying on the ground.
On February 26, 1981, Ivy McFadden, the deceased's mother and the administratrix of his estate, filed this suit under 42 U.S.C. § 1983 (Supp. IV 1980) for injuries suffered by the deceased in violation of his constitutional rights. Named as defendants were the City of New York and the four police officers involved in the incident. The complaint sought compensatory and punitive damages.
On April 27, 1982, one month before trial, the parties submitted and the District Court endorsed a pretrial order pursuant to Fed. R. Civ. P. 16. This pretrial order did not state that the plaintiff was seeking punitive damages. As it turned out, the omission of punitive damages was a mistake on the part of plaintiff's counsel. Near the end of the second day of trial, the mistake became evident, and the following colloquy ensued:
[Plaintiff's Counsel]: Your Honor, with regard to what you just said before about compensatory damages, we are seeking, according to the complaint, punitive damages.
The Court: You seem to have dropped that in the pre-trial order. The complaint may have alleged it originally, but the complaint also alleged a lot of other things. You want me to ...