The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Richard DeFelice, a former Chicago Police Officer, was found
liable of using excessive force against Plaintiff Jeremy Kunz
during Kunz's arrest and interrogation in March 1999. The same
jury that found DeFelice liable awarded Kunz $10,000 in
compensatory damages and another $250,000 in punitive
damages.*fn1 Officer DeFelice now challenges the award of
punitive damages as unconstitutional.
In 1996, the Supreme Court opened the gates to wider judicial
review of punitive damages. BMW of North America Inc. v. Gore,
517 U.S. 559 (1996) (reversing, for the first time, a state's
award of punitive damages as unconstitutionally excessive). The
novel outcome of that case stemmed from a growing body of Supreme
Court jurisprudence that raised the specter of constitutional
limits for punitive damages awards. Prior cases had established
that punitive damages could be so grossly excessive in relation
to the state's interest in punishment and deterrence as to
violate the Due Process Clause of the Fourteenth Amendment. TXO
Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 456
(1993); see also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 20-21 (1991) (requiring "meaningful and
adequate review by the trial court whenever a jury has fixed the
punitive damages" and "appellate review [that] makes certain that
the punitive damages are reasonable in their amount and rational
in light of their purpose to punish what has occurred and to
deter its repetition"). In Gore, the Supreme Court stepped
directly into the fray and offered courts a specific test to
determine whether persons subject to punitive damages had fair
notice of the potential scope of those damages.
517 U.S. at 574-75. Henceforth, the reasonableness of punitive damages was to
be measured by "the degree of reprehensibility" of the liable
party's conduct; "the disparity between the harm or potential
harm" suffered by the aggrieved party; and the difference between
the remedy awarded by the jury and "civil penalties authorized or
imposed in comparable cases." Id. at 575.
The Gore test altered the landscape of punitive damages
awards in an era in which those damages had begun to look like
winning lottery tickets.*fn2 See, e.g., State Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003) (applying
Gore's guideposts and reversing a punitive damages award of
$145 million, observing that the case was "neither close nor
difficult"). It has thrust courts district and
appellate*fn3 into the fact-filled landscape of
culpability, relative harm and comparative damages. This case is
no different.
In finding that Officer DeFelice used excessive force against
Mr. Kunz, the jury accepted the Plaintiff's testimony over the
contradictory statements made by DeFelice and his fellow officers. Kunz testified that DeFelice punched him in the face
after his arrest, while he was handcuffed and seated for
interrogation. Intentional, violent conduct is a weighty
consideration in evaluating the reasonableness of punitive
damages. See State Farm, 538 U.S. at 419 ("[t]he most important
indicium of the reasonableness of a punitive damages award is the
degree of reprehensibility of the defendant's conduct"); and
Gore, 517 U.S. at 576 (addressing violence as an aspect of
reprehensibility). The Seventh Circuit takes a similar stance on
physical violence as a basis for punitive damages. See e.g.,
Cooper v. Casey, 97 F.3d 914, 919 (7th Cir. 1996) (upholding
punitive damages twelve times greater than compensatory damages
and observing that a "wanton and cowardly attack" on shackled
prisoners was an appropriate basis for punitive damages). That
such physical violence was perpetrated by a Chicago Police
officer contributes to the reprehensible nature of the conduct.
See Waits v. City of Chicago, No. 01 C 4010, 2003 WL 21310277,
at *4 (N.D. Ill. June 6, 2003) ("[t]he fact that defendants were
Chicago police officers only contributes to the particularly
repulsive nature of their offense").
Officer DeFelice argues that the jury's failure to find him
liable on Kunz's related claim (alleging the denial of medical
care) mitigates against large punitive damages. He implies that a
finding of liability on that count would indicate more
reprehensible conduct with respect to the count on which he was
found liable. I think this argument is mis-directed. Whether
Kunz's injuries required medical care affects the compensatory
damages for which he is eligible, and might bear upon the
analysis of whether the punitive damages are grossly
disproportionate to the compensatory damages. However, Kunz's
failure to win a verdict of liability on his medical care claim
says little about the nature of DeFelice's conduct on the charge
of excessive force. Under the Gore analysis I must also consider any disparity
between the $250,000 in punitive damages awarded Kunz and the
actual or potential harm he suffered. 517 U.S. at 575. While the
Court has not identified a magic figure beyond which punitive
damages are presumptively unconstitutional, defendants have
seized hold of the Court's various discussions of the appropriate
ratio of punitive to compensatory damages*fn4 as grounds for
overturning large punitive damages awards. This Defendant relies
upon the Court's statement in State Farm that "few awards
exceeding a single-digit ratio between punitive and compensatory
damages, to a significant degree, will satisfy due process" in
his quest for remittitur of the punitive damages award. State
Farm, 538 U.S. at 425.
"The Supreme Court, however, has never held that simple
mathematical ratios are the be-all and end-all in punitive
damages analysis." Shea v. Galaxie Lumber & Constr. Co.,
152 F.3d 729, 736 (7th Cir. 1998). Rather, ratios "are instructive . . .
[and] demonstrate what should be obvious: Single-digit
multipliers are more likely to comport with due process, while
still achieving the State's goals of deterrence and retribution."
State Farm, 538 U.S. at 425. No one ratio can be applied to all
situations, particularly given the range of harm and suffering
eligible for punitive damages. See Gore, 517 U.S. at 582-83
("low awards of compensatory damages may properly support a
higher ratio than high compensatory awards, if, for example, a
particularly egregious act has resulted in only a small amount of
economic damages"). Moreover, the Seventh Circuit has cautioned
against too rigid an application of State Farm's suggested "single-digit ratio" standard. See Mathias v. Accor
Econ. Lodging, Inc., 347 F.3d 672, 676 (7th Cir. 2003) ("[t]he
Supreme Court did not, however, lay down a 4-to-1 or
single-digit-ratio rule it said merely that `there is a
presumption against an award that has a 145-to-1 ratio'")
(citation omitted). Ultimately, "courts must ensure that the
measure of punishment is both reasonable and proportionate to the
amount of harm to the plaintiff and to the general damages
recovered." State Farm, 538 U.S. at 426.
I am also wary of applying mathematical ratios to cases
involving the violation of civil rights where there may be
limited economic damages. Cf. Mathias, 347 F.3d at 676-77 (a
case involving bed bugs, rather than civil rights violations, but
instructive for its discussion of situations in which
compensatory damages are difficult to measure and where greater
punitive damages might be appropriate). I find it more useful to
consider punitive damage awards in cases involving plaintiffs who
suffered similar injuries as the result of similar conduct,
though I am well aware that rarely does an ideal comparator case
exist. In this case, Kunz testified that Officer DeFelice punched
him in the face multiple times, causing him to lose
consciousness. Photos of Kunz taken after his arrest show
bruising to his face, but he suffered no permanent physical
injuries. Kunz testified to long-term emotional damage, but not
to the extent that he required psychological or psychiatric care.
Comparable cases show a wide variety of punitive damage awards,
some subject to remittitur and others not. As a whole, however,
the cases demonstrate considerably lower punitive damages awards,
both in dollar amount and relative to the compensatory damages
awarded. See Cooper, 97 F.3d at 919-920 (upholding punitive
damages award against each defendant prison guard who repeatedly
kicked, beat and used mace against plaintiffs for a total of $60,000 in punitive damages per plaintiff); Robinson v. City of
Harvey, No. 99 C 3696, 2003 WL 21696191 (N.D. Ill. July 21,
2003) (awarding $25,000 in compensatory damages and $250,000 in
punitive damages to plaintiff shot in buttocks by police officer
where plaintiff suffered no permanent physical damage); Waits,
2003 WL 21310277 (reducing punitive damage awards from $2 million
(aggregate) to $45,000 when compensatory damages of $15,000 were
awarded to a plaintiff hit 15-20 times in the face by police);
Terrell v. Village of Univ. Park, No. 92 C 3320, 1994 WL 30960
(N.D. Ill. Feb. 1, 1994) (awarding $10,000 in punitive damages
for plaintiff arrestee who was slapped and slammed against a
police car); Burks v. Harris, No. 90 C 0728, 1991 WL 140114
(N.D. Ill. July 22, 1991) (awarding $6,500 in punitive damages
against defendant officers who struck plaintiff below the eye
with a police radio); and Grosse v. Van Milligen, No. 83 C
9334, 1987 WL 16242 (N.D. Ill. Aug. 21, 1987) (awarding $10,000 in
punitive damages against an officer who grabbed the plaintiff,
threw him to the ground, and punched him multiple times).
In a case in which a visitor to a prison was beaten viciously
by prison staff, the Court remitted $2 million in punitive
damages against three defendants to approximately $200,000.
Ibanez v. Velasco, No. 96 C 5990, 2002 WL 731778, at *16 (N.D.
Ill. Apr. 25, 2002). However, the jury in that case awarded $2.5
million in compensatory damages. Id. The compensatory damages
in this case were much smaller (and correspondingly, the physical
injuries suffered by plaintiff less severe). Plaintiff, relying
on Matthias, 347 F.3d at 676, argues that this is a case where
the "small" compensatory damage award merits a larger, rather
than smaller, punitive damage award to deter future, similar
conduct and appropriately punish DeFelice. In light of
Plaintiff's injuries, I disagree. See Waits, 2003 WL 21310277,
at *7 (finding that award of $15,000 in compensatory damages was "substantial" and proposing a
remittitur of $2 million in aggregate punitive damages to
$45,000). Cf. Jones v. Sheahan, No. 99 C 3669, 2003 WL
22508171, at *16 (N.D. Ill. Nov. 4, 2003) (observing that $25,000
in compensatory damages was neither so substantial that due
process limited punitive damages to the amount of compensatory
damages, nor so low as to permit a double-digit multiplier, and
ordering remittitur of damages against the defendants who caused
dislocated shoulder and broken wrist from $500,000 and $250,000
to $100,000 and $50,000 respectively). These cases suggest that
some reduction of the punitive damages assessed against Officer
DeFelice would be appropriate.
Officer DeFelice points to the statutory penalties for battery
as further evidence that remittitur is necessary for the verdict
to comport with constitutional requirements of due process. Under
Gore's three-part test, I must consider whether there is a
gross disparity between the punitive damages award against
Officer DeFelice and sanctions for similar conduct.
517 U.S. at 583. Under Illinois law, the fine authorized for battery (a Class
A misdemeanor) is $2,500 and the fine for felony battery is
$25,000. 730 ILCS 5/5-9-1(a)(1)-(2). The punitive damages awarded
by the jury are 10 times greater than the statutory penalty.
DeFelice discounts, however, the cost of any criminal penalties
that could be imposed for the conduct for which he was found
liable, though the burden for imposing criminal sanctions is
higher than the one imposed in this case. See Ibanez, 2002 WL
731778, at *14 (observing that Gore requires consideration of
both civil and criminal penalties). Moreover, as Plaintiff
observes, I need not compare the maximum statutory penalty to the
punitive damages award on a dollar-to-dollar basis;*fn5 at
the very least, the $25,000 statutory penalty put Officer DeFelice on notice that his
conduct was serious and subject to serious sanction. In this
case, the third element of the Gore analysis does not compel
either drastic remittitur of the damages nor ironclad adherence
to the jury's assessment of the appropriate punitive damage.
Finally, Officer DeFelice demands that I take into
consideration his alleged financial difficulties in reviewing the
award of punitive damages. His request is not beyond the pale.
See Ibanez, 2002 WL 731788 at *14-15 (remitting damages in
light of the fact that the award far exceeded defendants' ability
to pay); and Waits, 2003 WL 21310277, at *6-7 (defendants'
salary, an issue not addressed in Gore, is relevant to the
petition for remittitur). Kunz protests that DeFelice waived this
argument by failing to provide any testimony about his assets or
debts to the jury or during discovery. Courts have refused to
admit such information on this ground. See Jones v. Sheahan,
2003 WL 2250817, at *20, n. 15 (refusing to remit punitive
damages because of defendant's financial status when "the
defendants chose not to offer evidence of financial status at
trial"). Cf. Kemezy v. Peters, 79 F.3d 33, 36 (7th Cir. 1996)
(observing that defendants gamble with a "double or nothing"
outcome when they fail to offer evidence of net worth for fear
the jury will interpret this evidence as a concession on the
issue of liability). However, it is clear that evolving
jurisprudence on remittitur of punitive damages has affected
litigation strategies.*fn6 I am willing to consider testimony regarding DeFelice's ability to
pay punitive damages, though I will not accept the unsupported
statements offered in his affidavit. Kunz will have an
opportunity to depose DeFelice and examine his financial records;
both sides may then present evidence to argue for or against
remittitur based on DeFelice's ability to pay. Though I may
reduce the punitive damages on the basis of these additional
facts, I will do so bearing in mind the fact that DeFelice will
not pay any of the compensatory damages awarded by the jury and
the goals of deterrence and punishment punitive damages are
intended to further. See State Farm, 538 U.S. at 416 ("punitive
damages serve a broader function . . . they are aimed at
deterrence and retribution").
In conclusion, the Gore factors suggest that some remittitur
of punitive damages would be appropriate. As testimony regarding
DeFelice's financial status will assist in my determination of the appropriate amount of remittitur,
Defendant's Rule 59 Motion is Entered and Continued ...