The opinion of the court was delivered by: OBERDORFER
Plaintiffs brought this action for damages and injunctive relief against the District of Columbia and a number of active and retired members of the Metropolitan Police Department ("MPD") and the Federal Bureau of Investigation ("FBI").
The amended complaint filed October 28, 1977, alleged that defendants had systematically violated plaintiffs' constitutional rights, individually and through conspiracies, while plaintiffs engaged in lawful protest against government policy in the late 1960's and in the 1970's in the Washington area. Trial of the damages claim began on November 23, 1981, and continued for seventeen days.
A jury of six returned verdicts, after nearly five days of deliberation, on December 23, 1981.
Now before the Court are motions pursuant to Fed.R.Civ.P. 50(b), 59(a) for judgment notwithstanding the verdicts or, in the alternative, for a new trial.
The verdicts the jury returned found most of the defendants liable to plaintiffs and awarded most of the plaintiffs substantial sums in compensatory and punitive damages. The total amount of all awards to the eight prevailing plaintiffs against the 13 defendants found liable to them was $711,937.50. Three plaintiffs recovered $81,062.50 each and five recovered $93,750 each.
One plaintiff, the Washington Area Women Strike for Peace ("WAWSP"), was found not to have been injured by any defendant, and consequently had no recovery.
The individual defendants found by the jury to be liable to one or more plaintiffs included five persons employed at FBI headquarters or the FBI Washington Field Office ("WFO"). Defendant Brennan was a section chief, and later assistant director, of the FBI's Domestic Intelligence Division from 1966 to 1971. Defendant Moore served from 1967 to 1974 as a section chief in the same division as Brennan. Defendant Jones held the post of Security Coordinating Supervisor at WFO from 1964 to 1974. Defendant Grimaldi worked as a special agent at WFO from 1968 to 1970 and defendant Pangburn held a similar position from 1968 to 1972.
The defendants employed by the District of Columbia included former MPD Chief Wilson, former Intelligence Division Inspector Herlihy, and four officers assigned to the Intelligence Division during some of the years when plaintiffs claimed to have been injured. Those officers were defendant Acree, a sergeant at the relevant time; defendant Scrapper, also a sergeant; defendant Suter, then a lieutenant; and defendant Mahaney, then a line officer. The other individual MPD defendants were three undercover officers assigned to the Intelligence Division during the relevant period: defendants Bynum, Jagen, and Markovich.
According to plaintiffs, the FBI defendants collaborated with each other, with other FBI agents, and with the MPD defendants in a variety of efforts to impede plaintiffs' association with others for the purpose of publicly expressing opposition to government policies, chiefly opposition to the Viet Nam War and to policies espoused by national and local officials on race relations. Many of defendants' activities alleged to have injured plaintiffs were related to COINTELPRO, a then-secret FBI activity begun in 1967 and discontinued in the early 1970's. COINTELPRO had two components: COINTELPRO -- New Left, which concerned activities of persons opposed to American involvement in the Viet Nam War and other related policies of the national government, and COINTELPRO -- Black Nationalist, which concerned activities of persons seeking enhancement of civil rights for black persons. According to a memorandum prepared by defendant Brennan and circulated to the other FBI defendants and to agents across the country, COINTELPRO, in its "New Left" dimension, had the following objective:
The purpose of this program is to expose, disrupt, and otherwise neutralize the activities of this group and persons connected with it. It is hoped that with this new program their violent and illegal activities may be reduced if not curtailed.
Plaintiffs' Exhibit 3. The purpose of COINTELPRO -- Black Nationalist, according to an earlier memorandum, was inter alia to "prevent the coalition of militant black nationalist groups;" the Southern Christian Leadership Conference, then headed by the Rev. Dr. Martin Luther King, Jr., was one of four "primary targets" listed in the same memorandum.
The memorandum that had initiated COINTELPRO-Black Nationalist advised the agents to whom it was addressed, "You are urged to take an enthusiastic and imaginative approach to this new counterintelligence endeavor and the Bureau will be pleased to entertain any suggestions or techniques you may recommend." See Plaintiff's Exhibit 1. In addition to testimony there were in evidence some FBI documents indicating that COINTELPRO interfered tangibly with the protest activities of the kind carried on by plaintiffs. See, e.g., Plaintiffs' Exhibit 13 (WFO reporting that FBI distribution of fictious addresses for housing of demonstrators at 1968 Chicago demonstrations caused "numerous demonstrators" to make "useless trips to locate non-existent addresses."); Plaintiffs' Exhibit 69 ("security squad Buagents" supervised by defendant Jones instituted "an intensive interview program in the New Left community . . ." which "produced tangible results in the disruption of the day to day activities in the New Left communes . . . ."). At trial, plaintiffs asserted, and the jury evidently was persuaded, that plaintiffs were victims of three conspiracies, actionable under 42 U.S.C. § 1985(3), to violate their civil rights. One such conspiracy, the jury found, included the five FBI defendants; another encompassed certain of the MPD defendants; and a third involved both FBI and MPD defendants. The jury also found that many of the defendants, acting outside the scope of any conspiracy, injured various plaintiffs in the exercise of their First Amendment rights. The First Amendment rights plaintiffs alleged had been violated included the opportunity to assemble for political protest, to associate with others in order to engage in political expression, and to speak on public issues, free of unreasonable government interference. Plaintiffs offered evidence of broad undertakings by defendants to disrupt their activities and of specific instances in which FBI and MPD action allegedly impeded those activities.
Only two defendants, Bynum and Markovich, were found to be not liable to any plaintiff. Having determined that the other defendants were liable on various claims, the jury awarded varying sums to the prevailing plaintiffs against those defendants. The jury found all defendants other than Markovich and Bynum liable to plaintiffs Bloom, Abbott, Pollock, Waskow, and WPC. The jury also returned verdicts for plaintiffs Hobson, Eaton, and Booker against the five FBI defendants but, among the MPD defendants, only against former Chief Wilson and former Inspector Herlihy. All defendants except the District of Columbia and MPD officer Mahaney were found to be liable for both compensatory and punitive damages.
The largest judgment against any individual defendant was that awarded against defendant Brennan, whom the jury found personally liable for $9,375 to each of the eight prevailing plaintiffs, for a total of $75,000 of which $50,000 was compensatory, and $25,000 punitive, damages. The jury returned the smallest award against defendant Mahaney, who was found liable to five plaintiffs for $1,875 each, for a total of $9,375, all compensatory. Every prevailing plaintiff recovered $37,937.50, all compensatory, from the District of Columbia.
In their present motions for relief from the verdicts, the defendants found liable to various plaintiffs state numerous grounds for judgment notwithstanding the verdict ("judgment n.o.v.") and for a new trial. Defendants assert that the instructions on conspiracy and on the defense afforded by the statute of limitations were erroneous, and that even if the instructions were correct, the jury improperly found conspiratorial liability and improperly denied them relief from plaintiffs' claims under the statute of limitations. Defendants also assert that the damages awarded were excessive, and that the Court erred in not instructing the jury that the United States would not pay an award against the FBI defendants. The District of Columbia objects to the instructions on municipal liability, and, assuming arguendo the instructions were not erroneous, to the verdicts the jury returned against it. And all defendants also claim that the verdicts against them for conduct allegedly performed outside the scope of the alleged conspiracies similarly were not supported by the evidence. There are numerous other objections in defendants' motions.
Each plaintiff also has sought judgment n.o.v. against defendants Bynum and Markovich, and plaintiff WAWSP seeks judgment against all the other defendants as well as Bynum and Markovich.
For the reasons stated below, the Court will deny all motions, except the motion of defendants Wilson and Herlihy for relief from the jury's award of punitive damages.
II. The Instructions and Proof of Liability
A. Liability under 42 U.S.C. § 1985(3)
1. The Conspiracy Instructions
In their motion for a new trial the District of Columbia defendants renew their argument, first advanced at a pretrial conference and in their pretrial brief, that employees of the District cannot be liable as "persons within any State or Territory" under the terms of 42 U.S.C. § 1985(3). Defendants rest their argument on the interpretation of 42 U.S.C. § 1983 in District of Columbia v. Carter, 409 U.S. 418, 420-24, 34 L. Ed. 2d 613, 93 S. Ct. 602 (1973), in which the Supreme Court held that District employees did not in the course of their official duties act -- for purposes of 42 U.S.C. § 1983 -- under color of law of "any State or territory" so as to make their conduct actionable under section 1983.
This action is based, however, on section 1985(3). The conspiracies that are actionable under 42 U.S.C. § 1985(3) exist whether or not the participants act under color of any official authority. The Carter decision, which did not require construction of the geographical terms of section 1985(3) that are at issue here, is wholly immaterial to this case. See District of Columbia v. Carter, supra, 409 U.S. at 421-424; cf. Hurd v. Hodge, 334 U.S. 24, 31, 92 L. Ed. 1187, 68 S. Ct. 847 (1948) (construing language identical to section 1985(3) in 42 U.S.C. § 1982). Hurd v. Hodge controls the question here. It would indeed be anomalous if private discriminatory conduct enjoyed a geographical immunity simply because it occurred in the nation's capital. Cf. Hurd v. Hodge, supra, 334 U.S. at 31. Accordingly, defendants' motion on this issue cannot be granted.
Defendants also assert now, as they did at trial, that there was no evidence of "class-based discriminatory animus" to justify an instruction on liability under 42 U.S.C. § 1985(3). Griffin v. Breckenridge, 403 U.S. 88, 96-104, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971), established the basic elements of conspiracies actionable under section 1985(3). The proof of a conspiracy to violate civil rights is often circumstantial, and determination of the ultimate factual questions of intent is peculiarly within the province of the jury. Adickes v. S.H. Kress & Co., 398 U.S. 144, 175-88, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970) (Black, J., concurring in the judgment). The District of Columbia defendants appear, however, to argue that it was error to instruct the jury on section 1985(3) because the alleged conspiracy was not based on racial animus. See generally Griffin v. Breckenridge, supra, 403 U.S. at 102 n.9. Passing for the moment the question whether there was sufficient evidence for the verdicts that the jury returned, it is long past dispute that section 1985(3) does not require that the targets of the conspiracy be members of a particular racial group. That principle has been clear at least since Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 46 L. Ed. 2d 258, 96 S. Ct. 280 (1975). The cases now make it plain that it is the agreement vel non among the alleged conspirators to single a particular group or class for discriminatory interference with constitutional rights that should itself define the class for purposes of section 1985(3). If a conspiracy actionable under section 1985(3) does exist, it will have defined for itself the group or class of persons it intends to victimize. See Scott v. Moore, 640 F.2d 708, 718-19 (5th Cir. 1981); cf. Kimble v. McDuffy, 648 F.2d 340, 346-47 (5th Cir. 1981) (en banc); see also Canlis v. San Joaquin Sheriff's Posse Comitatus, 641 F.2d 711, 719 n.15 (9th Cir. 1981) (collecting cases). See generally Hampton v. Hanrahan, 600 F.2d 600, 624 (7th Cir. 1979), cert. denied on these grounds, rev'd in part on other grounds, 446 U.S. 754, 100 S. Ct. 1987, 64 L. Ed. 2d 670 (1980). In this case plaintiffs offered, as proof of conspiratorial consensus defining the target classes, FBI memoranda launching COINTELPRO and directing agents' attention to "New Left" and "Black Nationalist" political associations, as well as testimony of participants in the FBI program.
Plaintiffs also examined the MPD defendants on the criteria explicitly used by the Intelligence Division to identify targets for the Division's activities, and they closely questioned the MPD defendants on the implications of those criteria. There was substantial evidence from which the jury could have found that the alleged conspiracies targeted plaintiffs as opponents of the Viet Nam War or proponents of racial justice. Accordingly, the Court could not have kept plaintiffs' claims of conspiracy from the jury. See Adickes v. S. H. Kress, supra; Hampton v. Hanrahan, supra.
Conceding arguendo that the conspiracy issues had to be put to the jury, the FBI defendants raise specific objections to the content of some of the conspiracy instructions. One of their objections is that the Court incorrectly defined "overt act." The Court defined "overt act" using the familiar standard instruction in the District of Columbia "Red Book."
As the FBI defendants correctly observe, a recovery under section 1985(3) may be had only if a plaintiff suffered an injury as a result of an act taken in furtherance of the conspiracy. See 42 U.S.C. § 1985(3) (". . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury"); cf. Edwards v. James Stewart & Co., 82 U.S.App.D.C. 123, 125, 160 F.2d 935, 937 (1947); Fitzgerald v. Seamans, 384 F. Supp. 688, 693 (D.D.C. 1974), rev'd on other grounds, 180 U.S.App.D.C. 75, 553 F.2d 220 (1977). Nevertheless, proof of the agreement itself, as distinct from compensable injury, may derive from evidence of acts done by conspirators, whether or not the act caused an injury that would be actionable under section 1985(3). See, e.g., Hampton v. Hanrahan, supra, 600 F.2d at 624.
Thus when the FBI defendants contend that the Court erred in failing to instruct that "the overt act which makes the conspiracy actionable must have caused actual injury to the person, property or rights of the plaintiff," they presumably mean to assert that the Court failed to instruct the jury that an overt act in furtherance of the conspiracy must have injured the plaintiff, if that plaintiff is to have a recovery for that injury under section 1985(3).
The FBI defendants have not fairly read the Court's instructions. The Court instructed the jury that "the defendant must . . . have been proved by a preponderance of the evidence to have been a member of the conspiracy at the time the co-conspirator acted to injure the plaintiff in furtherance of his or her conspiratorial agreement."
Any question in the jury's mind that only acts in furtherance of the conspiracy causing injury were compensable must have been put to rest by the Court's subsequent instruction that liability would depend upon proof that "the act causing injury was committed by some one or more of [the] defendant's co-conspirators," if it had not been committed by the defendant himself. The separation of the basic definitions of the civil conspiracy from the elements of proof of liability in the instructions was merely a function of the fact that a Court's instructions, like any other exposition, can only address one point at a time. "The impact of a jury instruction 'is not to be ascertained by merely considering isolated statements, but by taking into view all the instructions given.'" Curtis Publishing Co. v. Butts, 388 U.S. 130, 156-57, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967) (quoting Seaboard Air Line Ry. v. Padgett, 236 U.S. 668, 672, 59 L. Ed. 777, 35 S. Ct. 481 (1915)). The instructions here introduced all the major terms the jury needed to apply, including "overt act," and then led the jury through the order of proof of the various claims and defenses. No juror who followed the Court's instructions could have conscientiously returned a verdict on the conspiracy theory for a plaintiff unless the juror believed that the plaintiff had proved that he or she had been injured by an act taken by a defendant or some other co-conspirator in furtherance of the conspiracy.
Defendants' second objection to the conspiracy instructions is that the instructions permitted the jury to find a defendant liable under section 1985(3) without having found him to possess the Breckenridge "discriminatory animus." That objection, too, involves an implausible reading of the instructions. The instructions, incorporating the familiar principles of general civil-conspiracy doctrine,
explained to the jury that "the participants in a conspiracy share the same general conspiratorial objective: there exists a meeting of the minds which creates an understanding to achieve the conspiracy's objectives. Thus all participants know the common plan; each knows the conspiracy's essential nature and general scope." The instructions then defined a conspiracy actionable under section 1985(3) as one in which "the conspiracy discriminated with hostile intent against a group or class to which plaintiff belonged, with a view to singling out that group or class" for interference with its members' rights under the Constitution.
Under those instructions, the raison d'etre for the conspiracy was discrimination "with hostile intent against a group or class to which plaintiff belonged," and to find a defendant liable for the conspiracy, the jury had to find that that defendant knew and agreed to the "general conspiratorial objectives." While the instructions did state that a plaintiff must prove that " the conspiracy discriminated with hostile intent," a person could not have been in the conspiracy, according to the instructions, unless he agreed to the "general conspiratorial objectives." The jury could not, under these instructions, have thought "the conspiracy" to be capable of some distinct "hostile intent" not shared by those who had formed the conspiracy and defined its objectives, inasmuch as a conspiracy is simply an agreement among individuals to act together in particular ways. Thus defendants' second attack on the conspiracy instructions, like the first, has no basis in a reasonable reading of the instructions.
Defendants argue that they are entitled to judgment n.o.v. on the conspiracy issues. The evidentiary criteria for grant of judgment n.o.v. match those for grant of a directed verdict. Murphy v. United States, 209 U.S. App. D.C. 382, 653 F.2d 637, 640 (D.C.Cir. 1981). Neither form of relief from a determination of the facts by a jury is appropriate unless "the evidence, together with all reasonable inferences that can reasonably be drawn therefrom, is so one-sided that reasonable men could not disagree on the verdict." Vander Zee v. Karabatsos, 191 U.S. App. D.C. 200, 589 F.2d 723, 726 (1978), cert. denied, 441 U.S. 962, 60 L. Ed. 2d 1066, 99 S. Ct. 2407 (1979). In this case, defendants' view of the jury's verdicts, and the evidence upon which the verdicts were based, is not persuasive.
Defendants' principal argument for judgment n.o.v. is that the evidence demonstrated that they were simply law-enforcement officers performing their duties within relatively small, closely-knit organizations: the MPD Intelligence Division, the WFO, and the FBI headquarters unit. Undoubtedly the fact that defendants were co-workers within various police and intelligence organizations would not alone establish the conspiratorial liability the jury found. Cf. Girard v. 94th Street & Fifth Avenue Corp., 530 F.2d 66, 70-72 (2d Cir. 1976); Rackin v. University of Pennsylvania, 386 F. Supp. 992, 1005 (E.D.Pa. 1974). Yet is it also possible for officers belonging to the same law-enforcement unit to conspire among themselves to engage in conduct denounced by the Civil Rights Act and actionable under section 1985(3). See Hampton v. Hanrahan, supra, 600 F.2d at 621, 623-24; cf. Rackin v. University of Pennsylvania, supra.
In the present case, plaintiffs introduced substantial documentary evidence of close coordination within WFO, and between WFO and other FBI units, including headquarters, to disrupt and discredit individual and group protest activities the agents believed to be part of the "New Left" or "Black Nationalism." The evidence of that concerted activity indicated that, consistent with FBI practice, individual agents exercised considerable discretion and initiative, subject to higher authorities' approval, in planning and working together to disrupt protest activities in which plaintiffs were involved. There was also evidence of a similar pattern of activity among the MPD defendants, though the evidence concerning MPD activity was less extensive than that regarding the FBI.
Moreover, plaintiffs introduced evidence of regular contacts between supervisory personnel of the Intelligence Division, including some defendants, and WFO agents engaged in COINTELPRO activities. On the other hand, MPD defendants denied at ...