The opinion of the court was delivered by: OBERDORFER
This matter is before the Court on remand from the Court of Appeals with instructions to conduct a new trial on the issue of damages.
Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1 (D.C. Cir. 1984) (Edwards, Scalia and Starr, JJ.), cert. denied, 470 U.S. 1084, 105 S. Ct. 1843, 85 L. Ed. 2d 142 (1985). The Court of Appeals emphasized that, with the parties' consent, damages could be fixed by this Court on the basis of the evidence adduced at the original trial. 737 F.2d at 59, 66 n.187. Four of the five FBI defendants have agreed to have the Court fix damages on this basis. One defendant, however, has demanded a new jury trial. Because a jury has special competence to determine damages for such things as pain and suffering, emotional distress, and damage to reputation where quantifying requires reference to common sense and broad experience in life, the Court planned to let the new jury fix the damages against the one defendant and sit as an advisory jury with respect to the claims against the others. This plan has proved unworkable.
The Court has decided, therefore, to proceed with the damage claims against the four defendants on the existing record. This record has been illuminated by elaborate briefs, detailed proposed findings, and an extended argument. Of special significance, the record includes the verdict of the original jury. See Hobson v. Wilson, 556 F. Supp. 1157, 1188 (D.D.C. 1982).
The Court of Appeals, while reversing judgments against the District of Columbia defendants, affirmed this Court's original "ruling on all other findings by the jury," including "the individual and conspiratorial liability of the FBI officers." 737 F.2d at 51. The Court of Appeals expressly stated that "the evidence here undoubtedly sufficed to permit the jury to conclude that" the FBI defendants were participants "in a common and unlawful plan whose goals [were] known to all members." 737 F.2d at 55 (emphasis added). That evidence establishes, and the jury, this Court, and the Court of Appeals have concluded, that each of the four FBI defendants now before the Court did engage in a common and unlawful plan, knowing that it was unlawful. Thus, the Court of Appeals-approved jury verdict establishes as a fact that each of the FBI defendants here was a knowing party to a conspiracy formed and operated over several years (1) "to expose, disrupt and otherwise neutralize" the lawful activities of "people who opposed American involvement in the Vietnam War and other related policies of the national Government," (2) "to expose, disrupt, misdirect, discredit, or otherwise neutralize" the lawful activities of "people seeking improvement of civil rights for Black people," and (3) to create dissension and hostility, and thereby prevent cooperation, between Black civil rights groups and essentially White anti-war groups. 737 F.2d at 10. The Court of Appeals further determined:
Whatever authority the Government may have to interfere with a group engaged in unlawful activity, and however it may be permitted to impede or deter rights of lawful association as a by-product of legitimate Government actions, it is never permissible to impede or deter lawful civil rights/political organization, expression or protest with no other direct purpose and no other immediate objective than to counter the influence of the target associations.
737 F.2d at 27 (emphasis in original).
The Court of Appeals essentially found "four categories of activity interfering with plaintiffs' legitimate protest activities: (1) efforts to create racial animosity between Blacks and Whites; (2) interference with lawful demonstration logistics; (3) efforts to create discord within groups or to portray a group's motives or goals falsely to the public; and (4) direct efforts to intimidate the plaintiffs." 737 F.2d at 11 (footnote omitted). Thereupon, the Court of Appeals enumerated significant examples of each activity:
1. Distribution of false press releases calculated to tarnish the reputation of the late Julius Hobson, and incidentally, his wife.
2. The "Give Them Bananas" leaflet found by the Court of Appeals to be "blatantly wrongful." 737 F.2d at 56.
3. Distribution of fictitious housing forms to disrupt the logistics of a lawful demonstration against the Vietnam War.
4. Interference with a counterinaugural demonstration by giving disinformation to parade marshals.
5. Infiltration of meetings to stimulate dissension.
6. Intimidation of politically active persons through harassment and intrusive interviews.
The evidence also establishes and it is found as a fact that the FBI defendants engaged in:
1. Publication of a fictitious student newspaper designed to dissuade students from participating in lawful and ...