Last week the Second Circuit, in Payne v. Jones, held that a jury’s $300,000 punitive damages award to a police beating victim was excessive. It thus remanded for a new trial on punitive damages, unless plaintiff agreed to remit $200,000 and accept a punitive damages award totaling $100,000.
After plaintiff was brought to the hospital, he became combative. Then:
As [the officer] was placing [plaintiff] on the bed, he noticed [plaintiff’s] Marine Corps tattoos and said “Marines are pussies.” In response, [plaintiff] kicked [the officer] in the groin area. [The officer] reacted by punching [plaintiff] in the face and neck seven to ten times and kneeing him in the back several times.
In evaluating the jury’s punitive damages award, the Court applied the three “guideposts” articulated by the Supreme Court in BMW v. Gore, 517 U.S. 559 (1996), namely the “(1) degree of reprehensibility of the defendant’s conduct, (2) relationship of the punitive damages to the compensatory damages, and (3) criminal and civil penalties imposed by the state’s law for the misconduct in question.” When considering the first factor – “[p]erhaps the most important indicium of the reasonableness of a punitive damages award” – it reasoned:
There is no doubt that [the officer’s] conduct was reprehensible. When called in to deal with [plaintiff’s] assaultive and combative behavior, he gratuitously provoked [plaintiff] with a verbal taunt and lost his temper responding with violence when [plaintiff] reacted to the provocation by kicking him. It is also an aggravating factor that [the officer] recognized that [plaintiff] might be mentally ill. It is another aggravating factor that [the officer] had used excessive force once in the past, and that his conduct is criminalized in New York as a class “A” misdemeanor. …
However, there were also mitigating factors to be counted in [the officer’s] favor in making the degree-of-reprehensibility analysis. [The officer’s] violence was not unprovoked. [Plaintiff’s] violent threats in the hospital had caused the officers to be summoned to control him. [Plaintiff] struggled to resist the officers’ efforts to place him in handcuffs and on a gurney. [The officer] became violent only after [plaintiff] kicked him in the groin. While it is true that [plaintiff’s] kick in [the officer’s] groin was in response to [the officer’s] inappropriate verbal taunt, it was nonetheless a kick in the groin. While [the officer’s] violence was reprehensible, it was provoked, and that diminishes the degree of reprehensibility. His attack on [plaintiff], furthermore, lasted at most 30 seconds, did not involve use of a weapon, and did not cause any serious physical injuries.
This is not the only basis for the reduction of the award, and the Court’s analysis of the remaining two factors is instructive.
Perhaps one day a law student, when called upon on recite the holding of this case, will respond with: “Provoking a police officer by kicking them in the groin will likely operate to reduce a punitive damages award, even if the officer’s conduct was improper.” And s/he would be right, at least in part.
I hope that kick was worth it!