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 peaceful political protest activity.
2. The inclusion of the names of plaintiffs Eaton, Waskow and Pollock on various government indexes, one of which marked Waskow for possible arrest and incarceration in the event of a serious national emergency.
In briefs and argument, counsel for defendants have pressed hard their contention that compensatory damages must be quantifiable and that it is impossible to quantify the damages proven here. It is true that in this case there are no monetary losses or physical injuries for which long experience has established guidelines. The Court of Appeals, and more recently the Supreme Court, has apparently concluded that the inherent value of a mere constitutional right is compensable only by nominal damages.
But in this case the Court of Appeals suggested a nonexclusive list of compensable injuries apparent in the record: injury to reputation, impairment of earning capacity, humiliation, and emotional distress such as embarrassment, fear, anxiety and anguish. 737 F.2d at 61, 62. These kinds of injuries are traditionally evaluated by juries and compensated for with damages. There was evidence in this case on which the jury could have found, as it did, that each of these plaintiffs suffered some such form of injury beyond effects on the inherent value of their associational rights.
The task of quantifying remains. One basis for quantifying is precedent. In Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), cert. denied, 438 U.S. 916, 57 L. Ed. 2d 1161, 98 S. Ct. 3146 (1978), the Court of Appeals determined that $ 7500 per plaintiff was excessive compensation for a single unlawful disruption of a demonstration at the Capitol in the 1960's; the parties later settled for $ 750 per person. In Tatum v. Morton, 183 U.S. App. D.C. 331, 562 F.2d 1279 (D.C. Cir. 1977), compensatory damages of $ 100 per person for unlawful removal from the White House and some manhandling by police was set aside as inadequate. On remand, the trial court awarded $ 1000 for each unlawful arrest and $ 400 for each "strip search." See Hobson, 556 F. Supp. at 1191. More recently, a District Court in New York has applied the Federal Tort Claims Act to award to the Socialist Workers Party $ 264,000 in compensatory damages -- $ 42,500 on account of FBI disruption activities, $ 96,500 for surreptitious entries, and $ 125,000 for use of informants. That court quantified the damage caused by each overt act at $ 2500. Socialist Workers Party v. The Attorney General of the United States, 642 F. Supp. 1357 (S.D.N.Y. 1986) (Griesa, J.).
Another guideline, possibly more relevant to punitive damages, is furnished by 18 U.S.C. § 241, a criminal statute which authorizes a $ 10,000 fine,
plus imprisonment for up to ten years, for participation in a conspiracy to deprive a person of his civil rights. Specifically, the statute applies to any case in which
two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.
A more directly applicable guideline is afforded by the jury verdict in this case. The Court of Appeals observed that the verdict form used here required the jury to determine the total damages owed by each defendant to each plaintiff; it did not delineate between the damages attributable to their individual acts and the effects of the FBI conspiracy. Nor did it identify the element of damages, if any, attributed by the jury to the FBI role in the alleged FBI-MPD conspiracy. 737 F.2d at 57.
In this area where limited experience with damages under section 1985(3) makes quantifying difficult, the common sense judgment of the jury is entitled to great weight. Indeed, as stated, when one of the defendants demanded a jury on remand, the Court attempted to seize the opportunity to engage that same jury as an advisory jury with respect to the claims against the other defendants. Although this plan has proved infeasible in the circumstances, it is possible to glean significant guidance from closer analysis of the damages awarded by the jury that did hear this case live -- at the same time that this Court was hearing it. The Court of Appeals was understandably reluctant to parse and reconstruct the damage awards after it struck down the judgments against the Metropolitan Police Department ("MPD") officials. But those judges, unlike the trial judge, did not live through the trial and see and hear the witnesses and arguments of counsel. Accordingly, this Court has undertaken to reconstruct the verdict, guided by what the jury decided in toto, and taking into account the after-thoughts expressed by this Court in ruling on the motion for a new trial, and by the Court of Appeals when it remanded for a new trial on damages.
The jury award to eight plaintiffs against thirteen defendants including the District of Columbia was $ 711,937.50. The jury awarded two of the present plaintiffs, Eaton and Hobson, $ 81,062.50 and awarded plaintiffs Pollock, Waskow and Washington Peace Center ("WPC") $ 93,750 for a total of $ 443,375. The awards to Eaton and Hobson included $ 37,937.50
chargeable to the District of Columbia, and $ 10,312 chargeable to two MPD officers, leaving $ 32,812.50 chargeable to five FBI defendants. The awards of $ 93,750 to Pollock, Washow and WPC included $ 37,937.50 chargeable to the District of Columbia, plus $ 23,000 chargeable to seven MPD officers. The liabilities of the present defendants ranged from $ 75,000 against defendant Brennan to $ 37,500 against defendant Grimaldi. One third of each award was delineated as for punitive damages.
It is noteworthy in this connection that in their original challenge to the damage verdicts, defendants charged that the jury's action reflected "rigid arithmetical calculations." 556 F. Supp. at 1189. And, indeed, there is considerable indication that the jurors may have worked backward, fixing a total amount to which they determined that plaintiffs were entitled, and then dividing that sum between the defendants according to their level of responsibility and activity in carrying out the conspiracy. This jury's judgment was not infallible. But the jurors sat through a seventeen-day trial and deliberated for five days before they returned a verdict. Their sense of the amount required approximately to compensate plaintiffs for their injury caused by the FBI conspiracy is entitled to great weight in the unusual circumstances here.
As the Court of Appeals observed, the jury's findings cannot be applied directly to the changed circumstances. But they constitute legitimate bench marks for quantifying. Recognizing that damage-fixing is, at best, an inexact science, it is possible to extrapolate from those bench marks some factors to guide the Court to a final conclusion. First, the jury's verdict assumed that plaintiffs would recover from the District of Columbia and MPD officials as well as from the FBI defendants. Second, it is the Court's impression of the evidence and the argument in the original case that when the jury assessed damages, it focussed (as did the Court in framing the verdict form and otherwise) on the FBI conspiracy and the alleged MPD conspiracy and not on the alleged FBI-MPD conspiracy so that any value attributable to the latter conspiracy was de minimis.8 Accordingly, in extrapolating from the jury verdict to determine damages the Court will reduce each award to eliminate roughly the portion attributable to the claims against the District of Columbia and the MPD officers, and then reduce that amount by one-third to eliminate, for the moment, the punitive damage claim. That liability will be assessed against the four defendants jointly and severally. They may, of course, be entitled to contribution, in an amount to be determined, from defendant Pangburn when his jury trial has run its course.
The damages assessed by the jury solely against the FBI defendants may be fairly identified as the damages (compensatory and punitive) due to each plaintiff from each FBI defendant. It has been tabulated as follows:
Charles D. Brennan $ 9,375
George C. Moore $ 7,500
Courtland Jones $ 5,625
Gerald Grimaldi $ 4,687.50
Gerould Pangburn $ 5,625
Total damage award to each
plaintiff chargeable to FBI
conspiracy $ 32,812.50
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