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Thomas Frizzell v. Carl Szaboand

July 27, 2011

THOMAS FRIZZELL, PLAINTIFF-APPELLANT,
v.
CARL SZABOAND SANGAMONCOUNTYSHERIFF'SOFFICE, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Central District of Illinois. No. 3:08-cv-03147-Michael P. McCuskey, Chief Judge.

The opinion of the court was delivered by: Evans, Circuit Judge.

ARGUED APRIL 12, 2011

Before KANNE and EVANS, Circuit Judges, and CLEVERT, District Judge.*fn1

This appeal arises from Thomas Frizzell's excessive force and false arrest suit against former Sangamon County, Illinois, deputy Carl Szabo. Although a jury found for Frizzell on the excessive force claim, it awarded only nominal damages. Frizzell now appeals the damage award and the subsequent denial of his motion for attorney's fees. We start with the facts.

The arrest in this case stems from what should have been a routine traffic stop in Springfield, Illinois, in November 2006. Szabo was on duty in his cruiser, parked in a gas station lot, looking to ticket drivers who weren't wearing their seatbelts. Around 5:45 p.m. Frizzell drove by on his way to work at a nearby Lowe's Home Improvement store. Szabo saw that Frizzell wasn't wearing his seatbelt and pulled in behind him, but didn't activate the cruiser's emergency lights. At this point Frizzell led Szabo along an indirect route to the Lowe's store. By the time they arrived at Lowe's it was 5:57 p.m. or so, and Frizzell, who was due at work at 6:00 p.m., sped into the parking lot. Szabo pulled in behind him and activated his emergency lights.

At this point, the testimony of the two men diverges. Szabo claims that Frizzell got out of his car and ignored a command to get back in the vehicle after being told that he was stopped for a seatbelt violation. Instead, Frizzell responded that he was late for work and didn't have time for this. He continued to jog across the parking lot toward the Lowe's. In contrast, Frizzell says he didn't see Szabo until he got out of his car, at which point he saw flashing lights and heard a lot of screaming, but didn't realize it was directed at him because he had done nothing wrong (Frizzell claimed throughout trial that he was wearing his seatbelt). Unable to make out what the deputy was saying because of the distance between them, and assuming it wasn't directed at him, he continued to hurry toward the store because he didn't want to be late for work. In a somewhat contradictory statement, Frizzell also claimed that after exiting his car he heard the deputy calling in via radio a "suspicious black" male in the Lowe's parking lot (this despite not being able to hear what the deputy was screaming), and, knowing he'd done nothing wrong but fearing police harassment, decided to jog toward the store.

Both parties agree that Szabo then drove his squad car between Frizzell and the store, cutting off Frizzell's route. Szabo claims he told Frizzell to stop and that he was under arrest. Frizzell claims it was at this point that he finally realized Szabo wanted to speak with him. He told Szabo he was going to go clock in and would come back out to speak with him. Frizzell then headed toward the exit doors to the store and began prying them open. According to Frizzell, he usually entered the store this way because the exit doors were closer to the time clock where he punched in to start his work shift. Szabo followed Frizzell toward the doors and grabbed his wrist from behind. Frizzell broke free because, he says, he didn't know who was grabbing him.

Here the stories diverge further. Szabo testified he told Frizzell again to stop, that he was under arrest and, "if you don't stop I'll taser you," but Frizzell ignored him and continued trying to pry open the doors. Frizzell testified Szabo pointed a gun at him and said, "stop, or I'll shoot," and asked Frizzell why he had run. Frizzell responded that he was going to go inside and get the store manager to verify that he worked there, then turned away from Szabo and continued inside. Three eyewitnesses all testified that Szabo told Frizzell to stop as he was trying to get in the exit doors.

Both parties agree that Frizzell continued entering the store, and at this point Szabo, who is a foot shorter, 75 pounds lighter, and 25 years older than Frizzell, hit him with a taser, a device designed to immobilize a suspect. Szabo testified that he was concerned because Frizzell had overreacted to a routine traffic stop, ignored repeated orders to stop, and was running, without explanation, toward a populated store. At this point, and in light of the size difference between the two men, Szabo felt the best way to stop Frizzell was to hit him with a shot from his taser. After the first jolt, Szabo thought that the taser was not working correctly, and so he proceeded to tase Frizzell four more times because Frizzell kept ignoring orders to stay down. After the fifth attempt, he pepper-sprayed Frizzell and subdued him. The taser's internal log verified that it was activated five times, with breaks of a few seconds between activations, and that it was manually shut off before the fifth activation had finished. Two witnesses testified that after hitting the floor, Frizzell continued to try to move toward the doors to the store.

In contrast, Frizzell testified that he stayed down and ignored an order from Szabo to roll onto his stomach because he was unable to move. Frizzell claimed that while he continued to lie on the ground, unable to move, he was tased continuously, probably 6 or 7 times. He also claims Szabo jumped or knelt on his chest, knocking the air out of him, and that after he was handcuffed Szabo doused him with pepper spray.

Frizzell was fired from his job at Lowe's as a result of this incident. He testified that he felt tired and like he was going to pass out for approximately two weeks following the incident. Because he did not have medical insurance, however, he didn't seek treatment for his problems. Charges against Frizzell relating to this incident were eventually dropped, and Frizzell then sued Szabo for excessive force and false arrest under 42 U.S.C. §§ 1983 and 1988. Szabo counter-sued for battery, seeking $75,000.

At the close of trial, the district judge held an instruction conference. Szabo proposed a nominal damages jury instruction, and Frizzell objected. The judge declined to give the nominal damages instruction and instead gave Frizzell's proposed damages instruction to the jury. During deliberations, the jury sent a note asking, "Do we have to award any money if we find in favor of the Plaintiff?" Over the objection of both parties, the judge responded with the following nominal damages instruction:

If you find in favor of Plaintiff but you find that the Plaintiff has failed to prove compensatory damages, you must return a verdict for Plaintiff in the amount of one dollar ($1.00).

If you find in favor of Plaintiff and also find that Plaintiff has proven compensatory damages, you must return a verdict for Plaintiff in the amount that fairly ...


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