IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
| THOMAS MUNZ, | |
| Plaintiff, | No. C 91-4005-MWB |
| vs. | PRELIMINARY AND FINAL INSTRUCTIONS TO THE JURY |
| CITY OF MASON CITY, IOWA, and TOBIN MICHAEL and KIRK PAPENTHIEN, | |
| Defendants. |
____________________
TABLE OF CONTENTS
PRELIMINARY INSTRUCTIONS
NO. 1 - PRELIMINARY INSTRUCTIONS
NO. 5 - DEFINITION OF EVIDENCE
NO. 6 - CREDIBILITY OF WITNESSES
FINAL INSTRUCTIONS
NO. 2 - IMPEACHMENT OF WITNESSES
NO. 3 - EXCESSIVE USE OF FORCE
PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS
Members of the jury, before the lawyers make their opening statements, I give you these preliminary instructions to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written final instructions given at the end of the case, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.
PRELIMINARY INSTRUCTION NO. 2 - GENERAL
The following is a brief summary of the case. It is not to be considered evidence or proof of any facts or events in the case. It is merely provided to inform you of the factual disputes between the parties.
This is a civil case brought by plaintiff Thomas Munz, who in 1989 was a prisoner at the Iowa State Penitentiary at Fort Madison, against defendants Tobin Michael and Kirk Papenthien, two Deputy United States Marshals. In December 1989, in connection with a pending federal court matter, the defendants transported Mr. Munz from the Penitentiary at Fort Madison to the Linn County Jail in Cedar Rapids, Iowa. At the Linn County Jail, Mr. Munz contends that the defendants physically assaulted him in violation of his constitutional rights. Defendants Michael and Papenthien deny that claim and contend that they treated Mr. Munz properly at all times.
You will be asked to resolve these disputes between the parties.
PRELIMINARY INSTRUCTION NO. 3 - DUTY OF JURORS
It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are and then apply those facts to the law which I will give you in these preliminary instructions, any instructions given during the trial, and in the final instructions at the conclusion of the case. You will then deliberate and reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.
You have been chosen and sworn as jurors in this case to try the issues of fact presented by the parties. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I will give it to you.
This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. All persons stand equal before the law, and are entitled to the same fair consideration by you. You may not give any less consideration to Mr. Munz's claim because he was in prison during the time he alleges his constitutional rights were violated or because he is now in prison. Although defendants Tobin Michael and Kirk Papenthien have been sued in this case for acts related to their employment as law enforcement agents with the United States Marshal's Service, this action is brought against them personally and not against the United States or the Marshal's Service.
Unless otherwise stated, you should consider each instruction given to apply separately and individually to the plaintiff and to each defendant in this case. Each defendant is entitled to a fair consideration of his defense to the plaintiff's claim.
You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.
PRELIMINARY INSTRUCTION NO. 4 - ORDER OF TRIAL
The trial will proceed in the following order:
After I conclude these preliminary instructions, the plaintiffs' lawyer may make an opening statement. Next, the defendants' lawyer may make an opening statement. An opening statement is not evidence, but is simply a summary of what the lawyers expect the evidence to be.
The plaintiff will then present evidence and counsel for the defendants may cross-examine. Following the plaintiff's case, the defendants may present evidence and plaintiff's counsel may cross-examine. Following the defendants' case, the plaintiff may take a further opportunity to present additional evidence.
After the parties have presented their cases and the evidence is concluded, I will give you the final instructions on the law that you are to apply in reaching your verdict.
After presentation of the evidence is completed and I have further instructed you on the law, the lawyers will make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you some final instructions on deliberations, and you will retire to deliberate on your verdict.
PRELIMINARY INSTRUCTION NO. 5 - DEFINITION OF EVIDENCE
You shall base your verdict only upon the evidence and these and other instructions which I may give you during the trial.
Evidence is:
1. Testimony in person or testimony previously given, which includes depositions or videotaped depositions.
2. Exhibits received by the court.
3. Stipulations which are agreements between the parties.
4. Any other matter admitted into evidence.
Evidence may be direct or circumstantial. You should not be concerned with these terms since the law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.
The following are not evidence:
1. Statements, arguments, questions, and comments by the lawyers.
2. Objections and rulings on objections.
3. Testimony I tell you to disregard.
4. Anything you saw or heard about this case outside the courtroom.
You should not take anything I may say or do during the trial as indicating what I think of the evidence.
PRELIMINARY INSTRUCTION NO. 6 - CREDIBILITY OF WITNESSES
In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.
In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, the motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe.
In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.
PRELIMINARY INSTRUCTION NO. 7 - STIPULATED FACTS
The plaintiff and defendants have agreed to certain facts and have reduced these facts to a written agreement or stipulation. Any counsel may, throughout the trial, read to you all or a portion of the stipulated facts. You should treat these stipulated facts as having been proved.
PRELIMINARY INSTRUCTION NO. 8 - DEPOSITIONS
Certain testimony from a deposition may be read into evidence or played from a videotape. A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. Consider that testimony as if it had been given in court.
PRELIMINARY INSTRUCTION NO. 9 - OBJECTIONS
From time to time during the trial I may be called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the lawyer for each party to object when another party offers testimony or other evidence that the lawyer believes is not properly admissible. You should not show prejudice against a lawyer or the party the lawyer represents because the lawyer has made objections. You should not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other. Also, if I sustain an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question itself.
PRELIMINARY INSTRUCTION NO. 10 - BENCH CONFERENCES
During the trial it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.
PRELIMINARY INSTRUCTION NO. 11 - NOTE-TAKING
If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all of the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.
If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.
Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider the evidence carefully without taking notes. You should not be overly influenced by the notes.
You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your decision.
PRELIMINARY INSTRUCTION NO. 12 - BURDEN OF PROOF
In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim depends upon that fact. The party who has the burden of proving a fact must prove it by the greater weight of the evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.
The greater weight of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.
You may have heard of the term "proof beyond a reasonable doubt." That is a stricter standard which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.
PRELIMINARY INSTRUCTION NO. 13 - ADMONITION
You will not be required to remain together while court is in recess. However, to ensure fairness, you, as jurors, must obey the following rules:
First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.
Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.
Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.
Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case--you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you either.
Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it.
Sixth, do not do any research or make any investigation about the case on your own.
Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.
DATED this 9th day of September, 1997.
_____________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
FINAL INSTRUCTION NO. 1 - INTRODUCTION
Members of the jury, the instructions I gave you at the beginning of the trial and any oral or written instructions I gave you during the trial remain in effect. I now give you some additional instructions.
You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. I emphasize, however, that the final instructions are not more important than the preliminary instructions, nor are written instructions more important than oral ones. Again, all instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.
In considering these instructions, the order in which they are given is not important.
Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.
FINAL INSTRUCTION NO. 2 - IMPEACHMENT OF WITNESSES
In Preliminary Instruction No. 6, I instructed you on credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached." A witness may be discredited or "impeached" by contradictory evidence, or by evidence that at some time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.
You have heard evidence that the plaintiff has been convicted of crimes. You may use that evidence only to help you decide whether to believe the plaintiff and how much weight to give his testimony.
FINAL INSTRUCTION NO. 3 - EXCESSIVE USE OF FORCE
Plaintiff Thomas Munz claims that defendants Tobin Michael and Kirk Papenthien physically assaulted him at the Linn County Jail in violation of his constitutional rights. Defendants Michael and Papenthien deny that claim and contend that they treated Mr. Munz properly at all times. To prevail on his claim that either defendant used excessive force against him in the Linn County Jail, plaintiff Munz must prove all of the following elements by the greater weight of the evidence as to that defendant:
First, the defendant beat or kicked the plaintiff in the Linn County jail cell.
Second, the use of force was excessive and applied maliciously and sadistically for the very purpose of causing harm.
If you determine that force was used by a defendant against the plaintiff in the Linn County Jail cell, you must still consider whether such force was excessive within the meaning of the Eighth Amendment of the United States Constitution. The Eighth Amendment protects the right of people to be free from cruel and unusual punishment.
Not every push or shove, even if it later seems unnecessary, violates the Eighth Amendment. You must make allowances for the fact that law enforcement officers are often forced to make split-second judgments in tense, uncertain, and rapidly evolving circumstances about the amount of force that is necessary in a particular situation. However, use of physical force that is repugnant to the conscience of mankind, although minimal, is excessive.
"Maliciously" means intentionally injuring another without just cause or reason. "Sadistically" means engaging in extreme or excessive cruelty or delighting in cruelty. In determining whether the force used was excessive, you must consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether the force was used to achieve a legitimate purpose or for the very purpose of causing harm. You must consider these factors from the perspective of a reasonable law enforcement officer on the scene, rather than from hindsight.
Finally, mere negligence on the part of a defendant is not enough for imposition of liability. Nor is it enough that a reasonable person would have known that a substantial risk of serious harm to plaintiff existed. If you find the acts of a defendant were negligent, then, even if you find that the plaintiff was injured as a result of those acts, you must return a verdict for that defendant.
Third, as a direct result of the use of excessive force, plaintiff was damaged.
In order to establish a violation of constitutional rights by a particular defendant, the plaintiff must prove that his damage was a direct result of a particular defendant's unconstitutional action. Damage is a direct result of conduct if the damage would not have occurred but for the conduct. Similarly, if the damage would have occurred without the conduct complained of, such damage cannot be a direct result of the conduct.
In the context of this case, the plaintiff has to prove that the damage he suffered was a direct result of a defendant's unconstitutional conduct for that defendant to be held liable. If the plaintiff's damage was a direct result of a defendant's unconstitutional conduct, that defendant may be held liable for damage personally and directly attributable to that defendant, even if you also find that some other conduct or some other person also caused damage to the plaintiff.
If, however, you find that the plaintiff's damage was caused solely by someone or something other than a particular defendant's unconstitutional conduct, that defendant cannot be held liable for the plaintiff's damage. Furthermore, a defendant is not liable if the plaintiff's injury was caused by a new or independent source of an injury that intervenes between the defendant's act or omission and the plaintiff's injury and which produces a result that was not reasonably foreseeable by the defendant.
If the plaintiff has proved each of these elements by the greater weight of the evidence as to a particular defendant, then you must find that defendant liable for excessive use of force. However, if the plaintiff has failed to prove any of these elements by the greater weight of the evidence as to a particular defendant, then your verdict must be for that defendant.
Although defendants Tobin Michael and Kirk Papenthien have been sued in this case for acts related to their employment as law enforcement agents with the United States Marshal's Service, this action is brought against them personally and not against the United States or the Marshal's Service. Therefore, in considering this case, you may not assume or treat this lawsuit as a suit against the United States or an agency of the United States Government.
FINAL INSTRUCTION NO. 4 - CONCERTED ACTIVITY
As an alternative theory of recovery, plaintiff Thomas Munz claims that defendants Tobin Michael and Kirk Papenthien engaged in concerted activity with another or others, not defendants here, during which Mr. Munz was physically assaulted at the Linn County Jail in violation of his constitutional rights. To prevail on his claim that either or both defendants engaged in concerted activity during which excessive force was used against him in the Linn County Jail, plaintiff Munz must prove all of the following elements by the greater weight of the evidence:
First, the defendant engaged in concerted activity with others or another during which the plaintiff was beaten or kicked in the Linn County jail cell.
A defendant is legally responsible not only for his own actions, but also for the actions of all those with whom he engages in concerted activity. "Concerted activity" is defined as activity of two or more people in furtherance of a common plan or design to commit a legal wrong. A defendant is responsible for the actions of another as long as the defendant plays an active part in the common plan, furthers it by cooperation or request, or lends aid or encouragement to another wrongdoer, or ratifies and adopts the wrongdoer's actions. If you find that there was concerted activity between a defendant and any other person, you may consider that concerted activity in deciding whether a defendant is responsible for the force used against the plaintiff.
Second, the use of force was excessive and applied maliciously and sadistically for the very purpose of causing harm.
Not every push or shove, even if it later seems unnecessary, violates the Eighth Amendment. You must make allowances for the fact that law enforcement officers are often forced to make split-second judgments in tense, uncertain, and rapidly evolving circumstances about the amount of force that is necessary in a particular situation. However, use of physical force that is repugnant to the conscience of mankind, although minimal, is excessive.
"Maliciously" means intentionally injuring another without just cause or reason. "Sadistically" means engaging in extreme or excessive cruelty or delighting in cruelty. In determining whether the force used was excessive, you must consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether the force was used to achieve a legitimate purpose or for the very purpose of causing harm. You must consider these factors from the perspective of a reasonable law enforcement officer on the scene, rather than from hindsight.
Finally, mere negligence on the part of any person engaged in concerted activity is not enough for imposition of liability. Nor is it enough that a reasonable person would have known that a substantial risk of serious harm to plaintiff existed. If you find the acts of all of the persons engaged in concerted activity were only negligent, then, even if you find that the plaintiff was injured as a result of those acts, you cannot find any defendant liable for concerted activity.
Third, as a direct result of the use of excessive force, plaintiff was damaged.
If you find that there was concerted activity between a defendant and any other person, that defendant is liable for all damage that is a direct result of the use of excessive force by all persons engaged in concerted activity.
If, however, you find that the plaintiff's damage was caused solely by someone or something other than the conduct of persons engaged in concerted activity, a defendant who engaged in concerted activity cannot be liable for the plaintiff's damage. Furthermore, a defendant who engaged in concerted activity is not liable if the plaintiff's injury was caused by a new or independent source of an injury that intervenes between the acts of those engaged in concerted activity and the plaintiff's injury and which produces a result that was not reasonably foreseeable by those engaged in concerted activity.
If the plaintiff has proved each of these elements by the greater weight of the evidence as to a particular defendant, then you must find that defendant liable for concerted activity involving excessive use of force. However, if the plaintiff has failed to prove any of these elements by the greater weight of the evidence as to a particular defendant, then your verdict must be for that defendant.
FINAL INSTRUCTION NO. 5 - ACTUAL DAMAGES
If you find in favor of the plaintiff on his claim of excessive use of force, as that claim is explained in Final Instruction No. 3, or in favor of the plaintiff on his claim of concerted activity, as that claim is explained in Final Instruction No. 4, then you must award the plaintiff such sum as you find from the greater weight of the evidence will fairly and justly compensate him for any damages you find he sustained as a direct result of the excessive use of force. The fact that I am instructing you on the proper measure of damages should not be considered as an indication of any view of mine as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance, in the event you should find that the plaintiff is entitled to damages in accord with the other instructions.
If you decide to award the plaintiff actual damages, you must not take into account your own personal beliefs concerning the importance of the constitutional right allegedly violated. As I have stated, the plaintiff is entitled to an award of actual damages for an injury that he has proved by the greater weight of the evidence.
You should consider the following elements of damages: The physical pain and mental or emotional suffering the plaintiff has experienced.
Remember, throughout your deliberations you must not engage in any speculations, guess, or conjecture and you must not award any damages under this Instruction by way of punishment or through sympathy. In arriving at an item of damage, you cannot establish a figure by taking down the estimate of each juror as to that item of damage and agreeing in advance that the average of those estimates shall be your award of damage for that item. The amount you assess for any item of damage must not exceed the amount caused by the wrongful conduct of the defendant as proved by the greater weight of the evidence. A party cannot recover duplicate damages. Do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage.
FINAL INSTRUCTION NO. 6 - NOMINAL DAMAGES
If you find in favor of plaintiff under Final Instruction No. 3 or Final Instruction No. 4, but you find that the plaintiff's damages have no monetary value, then you must return a verdict for plaintiff in the nominal amount of One Dollar ($1.00).
FINAL INSTRUCTION NO. 7 - PUNITIVE DAMAGES
In addition to the damages mentioned in other instructions, the law permits the jury under certain circumstances to award the injured person punitive damages in order to punish the defendant or defendants for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct.
If you find in favor of the plaintiff and against either or both defendants, and if you find that the conduct of the defendant or defendants as submitted in Final Instruction No. 3 was recklessly and callously indifferent to the plaintiff's Eighth Amendment right to be free from excessive use of force, or if you find that either defendant engaged in concerted activity as that claim is submitted in Final Instruction No. 4 and that any person who engaged in concerted activity was recklessly and callously indifferent to the plaintiff's Eighth Amendment right to be free from excessive use of force, then, in addition to any other damages to which you find the plaintiff is entitled, you may, but are not required to, award the plaintiff an additional amount as punitive damages if you find it is appropriate to punish the defendant or defendants or to deter the defendant or defendants and others from like conduct in the future. Whether to award the plaintiff punitive damages and the amount of those punitive damages are within your sound discretion.
Factors you may consider in awarding punitive damages include, but are not limited to the following: the nature of the defendant's conduct; the impact of the defendant's conduct on the plaintiff; the relationship between the plaintiff and the defendant; the likelihood that the defendant would repeat the conduct if a punitive award is not made; the defendant's financial condition; and any other circumstances shown by the evidence, including any circumstances of mitigation, that bear on the question of the size of any punitive award.
You may assess punitive damages against any or all defendants or you may refuse to impose punitive damages. If punitive damages are assessed against more than one defendant, the amounts assessed against such defendants may be the same or they may be different.
FINAL INSTRUCTION NO. 8 - DELIBERATIONS
In conducting your deliberations and returning your verdict, there are certain rules you must follow.
First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.
Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict must be unanimous. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges--judges of the facts. Your sole interest is to seek the truth from the evidence in the case.
Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone--including me--how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. The verdict must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.
Finally, I am giving you the verdict forms. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and when each of you has agreed on the verdicts, your foreperson will fill in the form and date it, all jurors will sign it, and the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.
DATED this 11th day of September, 1997.
_____________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
| THOMAS MUNZ, | |
| Plaintiff, | No. C 91-4005-MWB |
| vs. | VERDICT FORM |
| CITY OF MASON CITY, IOWA, and TOBIN MICHAEL and KIRK PAPENTHIEN, | |
| Defendants. |
____________________
Note: Please answer each question in the order presented unless directed otherwise.
EXCESSIVE USE OF FORCE
A. Liability
Question No. 1: Did either of the defendants use force against the plaintiff in the Linn County jail cell on December 26, 1989? (Please refer to Final Instruction No. 3.)
a. Tobin Michael _____ Yes _____ No
b. Kirk Papenthien _____ Yes _____ No
(If you answered "No" as to both defendants, do not answer any more questions as to excessive use of force and do not award any damages for excessive use of force in Section B. Instead, go on to consider the liability of the defendants for concerted activity, beginning with Question No. 10. However, if you answered "Yes" as to either or both of the defendants, you must answer the following question with respect to that defendant or those defendants.)
Question No. 2: Was the force used by the defendant excessive in light of the facts and circumstances confronting the defendant? (Please refer to Final Instruction No. 3.)
a. Tobin Michael _____ Yes _____ No
b. Kirk Papenthien _____ Yes _____ No
(If you answered "No" as to both defendants, do not answer any more questions as to excessive use of force and do not award any damages for excessive use of force in Section B. Instead, go on to consider the liability of the defendants for concerted activity, beginning with Question No. 10. However, if you answered "Yes" as to either or both of the defendants, you must answer the following question with respect to that defendant or those defendants.)
Question No. 3: Did the defendant act maliciously and sadistically for the very purpose of causing harm to the plaintiff? (Please refer to Final Instruction No. 3.)
a. Tobin Michael _____ Yes _____ No
b. Kirk Papenthien _____ Yes _____ No
(If you answered "No" as to both defendants, do not answer any more questions as to excessive use of force and do not award any damages for excessive use of force in Section B. Instead, go on to consider the liability of the defendants for concerted activity, beginning with Question No. 10. However, if you answered "Yes" as to either or both of the defendants, you must answer the following question with respect to that defendant or those defendants.)
Question No. 4: Was the plaintiff injured as a direct result of the actions of the defendant? (Please refer to Final Instruction No. 3.)
a. Tobin Michael _____ Yes _____ No
b. Kirk Papenthien _____ Yes _____ No
(If you answered "No" as to both defendants, you may not award damages against either defendant for excessive use of force in Section B. However, if you answered "Yes" as to either or both of the defendants, you may award damages for excessive use of force in Section B as to that defendant or those defendants.)
B. Damages For Excessive Use Of Force
Note: You may award damages here against only the defendant or defendants for whom you answered "Yes" in response to each of the questions in Section A as to liability for excessive use of force. If your answer to any of the questions in Section A as to liability for excessive use of force by a particular defendant was "No," you cannot award damages against that defendant for excessive use of force.
Question No. 5: What amount of actual damages did plaintiff Thomas Munz sustain as a direct result of the actions of the defendant or defendants? (Please refer to Final Instruction No. 5.)
$ __________
Question No. 6: What amount of plaintiff's actual damages is personally and directly attributable to each defendant? (You may award damages against each defendant found liable for excessive use of force, but only for that part of the plaintiff's injury personally and directly attributable to a particular defendant.)
a. Tobin Michael $ __________
b. Kirk Papenthien $ __________
Question No. 7: Do you find that the defendants or a defendant violated the plaintiff's federal constitutional right to be free from excessive use of force, but you find that the plaintiff's damages have no monetary value? If so, you must return a verdict for plaintiff in the nominal amount of One Dollar ($1.00). (Please refer to Final Instruction No. 6.)
________ Yes, we the jury enter a verdict for nominal damages in the amount of One Dollar ($ 1.00).
________ No, we the jury have entered an award of actual damages in response to Question No. 6.
(If you have awarded actual or nominal damages against a defendant, you may, but are not required to award punitive damages as to that defendant. However, if you have not awarded actual or nominal damages against either defendant, you cannot award punitive damages.)
C. Punitive Damages For Excessive Use Of Force
Question No. 8: Do you find that the defendant was or defendants were recklessly and callously indifferent to the plaintiff's Eighth Amendment right to be free from excessive use of force? (Please refer to Final Instruction No. 7.)
a. Tobin Michael _____ Yes _____ No
b. Kirk Papenthien _____ Yes _____ No
(If you answered "No" as to both defendants, you may not award punitive damages. However, if you answered "Yes" as to either or both of the defendants, you may award punitive damages against that defendant or those defendants in response to the following question.)
Question No. 9: What amount of punitive damages, if any, do you award against each defendant? (Please refer to Final Instruction No. 7.)
a. Tobin Michael $ __________
b. Kirk Papenthien $ __________
(Please go on to consider the liability of the defendants for concerted activity beginning with Question No. 10.)
CONCERTED ACTIVITY
A. Liability
Question No. 10: Did either of the defendants engage in concerted activity with others or another during which the plaintiff was beaten or kicked in the Linn County jail cell on December 26, 1989? (Please refer to Final Instruction No. 4.)
a. Tobin Michael _____ Yes _____ No
b. Kirk Papenthien _____ Yes _____ No
(If you answered "No" as to both defendants, do not answer any more questions as to concerted activity and do not award any damages for concerted activity in Section B. Instead, please sign and date the verdict form and notify the Court Security Officer that you have reached a verdict. However, if you answered "Yes" on this question as to either or both of the defendants, you must answer the following question with respect to that defendant or those defendants.)
Question No. 11: Was the force used by any person engaged in concerted activity excessive in light of the facts and circumstances confronting them? (Please refer to Final Instruction No. 4.)
_____ Yes _____ No
(If you answered "No," do not answer any more questions as to concerted activity and do not award any damages for concerted activity in Section B. Instead, please sign and date the verdict form and notify the Court Security Officer that you have reached a verdict. However, if you answered "Yes" on this question, you must answer the following question.)
Question No. 12: Did any person who engaged in concerted activity act maliciously and sadistically for the very purpose of causing harm to the plaintiff? (Please refer to Final Instruction No. 4.)
_____ Yes _____ No
(If you answered "No," do not answer any more questions as to concerted activity and do not award any damages for concerted activity in Section B. Instead, please sign and date the verdict form and notify the Court Security Officer that you have reached a verdict. However, if you answered "Yes" on this question, you must answer the following question.)
Question No. 13: Was the plaintiff injured as a direct result of the use of force by those engaged in concerted activity? (Please refer to Final Instruction No. 4.)
_____ Yes _____ No
(If you answered "No," do not answer any more questions as to concerted activity and do not award any damages for concerted activity in Section B. Instead, please sign and date the verdict form and notify the Court Security Officer that you have reached a verdict. However, if you answered "Yes" on this question, you may award damages for concerted activity in Section B as to any defendant who engaged in concerted activity.)
B. Damages For Concerted Activity
Note: You may award damages here against only the defendant or defendants for whom you answered "Yes" in response to each of the questions in Section A as to liability for concerted activity. If your answer to any of the questions in Section A as to concerted activity for a particular defendant was "No," you cannot award damages against that defendant for concerted activity.
Question No. 14: What amount of actual damages did plaintiff Thomas Munz sustain as the result of concerted activity in which the defendant or defendants engaged? (Please refer to Final Instruction No. 5. The amount of damages you award here must include any damages awarded in response to Question No. 6.a. and b.)
$ __________
Question No. 15: Do you find that a person engaged in concerted activity violated the plaintiff's federal constitutional right to be free from excessive use of force, but you find that the plaintiff's damages have no monetary value? If so, you must return a verdict for plaintiff in the nominal amount of One Dollar ($1.00). (Please refer to Final Instruction No. 6.)
________ Yes, we the jury enter a verdict for nominal damages in the amount of One Dollar ($ 1.00).
________ No, we the jury have entered an award of actual damages in response to Question No. 14.
(If you have awarded actual or nominal damages against a defendant, you may, but are not required to award punitive damages as to that defendant. However, if you have not awarded actual or nominal damages against either defendant, you cannot award punitive damages.)
C. Punitive Damages For Concerted Activity
Question No. 16: Do you find that any person who engaged in concerted activity was recklessly and callously indifferent to the plaintiff's Eighth Amendment right to be free from excessive use of force? (Please refer to Final Instruction No. 7.)
_____ Yes _____ No
(If you answered "No," you may not award punitive damages. However, if you answered "Yes," you may award punitive damages in response to the following question.)
Question No. 17: What amount of punitive damages, if any, do you award? (Please refer to Final Instruction No. 7. The amount of punitive damages you award here must include any punitive damages awarded in response to Question No. 9.a. and b.)
$ __________
Date: _________________ ____________________________
FOREPERSON
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JUROR JUROR
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JUROR JUROR
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JUROR JUROR
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JUROR