882 F.2d 553 (1st Cir. 1989), 88-1881, Gutierrez-Rodriguez v. Cartagena

Docket Nº:88-1881, 88-1882.
Citation:882 F.2d 553
Party Name:Carlos A. GUTIERREZ-RODRIGUEZ, Plaintiff, Appellee, v. Desiderio CARTAGENA and Domingo Alvarez, Defendants, Appellants. Carlos A. GUTIERREZ-RODRIGUEZ, Plaintiff, Appellee, v. Pedro N. SOTO and Edwin F. Gotay, Defendants, Appellants.
Case Date:August 11, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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882 F.2d 553 (1st Cir. 1989)

Carlos A. GUTIERREZ-RODRIGUEZ, Plaintiff, Appellee,


Desiderio CARTAGENA and Domingo Alvarez, Defendants, Appellants.

Carlos A. GUTIERREZ-RODRIGUEZ, Plaintiff, Appellee,


Pedro N. SOTO and Edwin F. Gotay, Defendants, Appellants.

Nos. 88-1881, 88-1882.

United States Court of Appeals, First Circuit

August 11, 1989

Heard April 7, 1989.

As Amended Aug. 17, 1989.

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Zuleika Llovet, Hato Rey, P.R., with whom Hector Rivera-Cruz, Secretary of Justice, Bayamon, P.R., Rafael Ortiz Carrion, Sol. Gen., John F. Nevares and Saldana, Rey, Moran & Alvarado, Hato Rey, P.R., were on brief for Desiderio Cartagena and Domingo Alvarez.

Ivonne Gonzalez Morales for Pedro N. Soto and Edwin F. Gotay.

Judith Berkan, Santurce, P.R., with whom Peter Berkowitz, Jose Antonio Lugo and Lugo & Berkowitz, Hato Rey, P.R., were on briefs for plaintiff, appellee.

Before BOWNES and SELYA, Circuit Judges, and CAFFREY, [*] Senior District Judge.

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BOWNES, Circuit Judge.

This case arises out of the unwarranted shooting of plaintiff-appellee, Carlos A. Gutierrez-Rodriguez, by police officers of the Commonwealth of Puerto Rico. Plaintiff, rendered a paraplegic as a result of the shooting, sued the officers involved and their supervisors under 42 U.S.C. Sec. 1983, alleging that their actions and omissions deprived him of his constitutional rights. The jury returned a substantial verdict in favor of plaintiff assessing both compensatory and punitive damages against the defendants. Defendants now appeal on numerous assertions of error. We affirm.


We recite the facts and all reasonable inferences to be drawn therefrom in the light most favorable to plaintiff, since the jury found for him. See Kassel v. Gannett Co., 875 F.2d 935, 937 (1st Cir., May 24, 1989) (citing Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987)).

On December 9, 1983, Carlos Gutierrez was a healthy 22-year old. He was regularly employed and had plans to pursue academic studies at the InterAmerican University. On that evening, Gutierrez had a date with Margarita Oquendo. He drove Oquendo to his father's house to meet his parents for the first time. The house was located in a rural, mountainous section of Barrazas, Carolina, in Puerto Rico. After the visit, Gutierrez and Oquendo left the house and drove to a nearby secluded spot. He parked the car on the side of the road with the parking lights on. They admired the night scene of San Juan just visible in the distance.

Nelson Velazquez, Edwin Gotay, Jesus Moreno 1 and Pedro Soto were members of the Carolina Drugs and Narcotics Division of the Police Department of Puerto Rico. Soto was an investigative agent, or "nine-stripe," a rank which is slightly higher than patrolman. The other three were unranked police officers. On December 9, 1983, they were assigned to do "preventive rounds" in and around the Barrazas region of Carolina, with Soto in command. Gotay testified at trial that the purpose of preventive rounds was "to go to all of the places where drugs was [sic] being trafficked, and if you saw that there were [sic] drug trafficking going on you would try to intervene on that."

The preventive rounds on this night were uneventful until 11:30 p.m. At that time, the unmarked police car containing Soto, Gotay, Velazquez and Moreno came upon Gutierrez' vehicle. The officers, who were in plain clothes, quickly exited their vehicle and approached the car with guns drawn. Upon seeing unidentified men brandishing firearms approaching his car, Gutierrez hastily started his engine and began to drive away. Without warning, the officers began to fire at the car. One bullet struck Gutierrez in the back, causing him to lose control of the vehicle. The car went off the road and landed on its side in a ditch. The officers caught up with the car and set it upright. They then identified themselves as police officers and transported Gutierrez to a hospital.

Gutierrez received extensive and permanent injuries as a result of his gunshot wound. The bullet damaged his spinal cord, causing him to become a paraplegic--permanently paralyzed from the waist down.

Plaintiff sued the four officers who were at the scene under 42 U.S.C. Sec. 1983 for depriving him of his constitutional right of liberty without due process of law. He also brought suit against Domingo Alvarez, the Director of the Carolina Drugs and Narcotics Division and Desiderio Cartagena, the Police Superintendent, alleging that their supervisory actions and omissions caused or contributed to cause his injury.

After a twelve-day trial, the jury returned a verdict in favor of the plaintiff. The jury awarded him $4.5 million in compensatory damages, jointly and severally against all defendants. Punitive damages

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were also awarded against the individual defendants in the following amounts: Cartagena--$150,000; Alvarez--$225,000; Soto--$200,000; Velazquez--$30,000; 2 Gotay--$25,000. Defendants filed a number of post-verdict motions, all of which were denied by the trial court.

Defendants have raised the following issues on appeal: 3 (1) was the evidence sufficient to support the jury's finding of liability under Sec. 1983; (2) was the district court's instruction concerning the standard for imposing liability on both the supervisors and the officers consistent with applicable law; (3) did the district court err in denying defendants' motion for a mistrial because of prejudicial pretrial and trial publicity; (4) did the admission of past complaints against Officer Soto constitute reversible error; (5) did the district court's refusal to permit Soto to testify at trial due to his earlier assertion of his fifth amendment privilege against testifying constitute an abuse of discretion; (6) should the jury award have been reduced or a new trial been granted on the ground that the award was excessive; and (7) was there a basis for the jury's imposition of punitive damages.


As the defendants' arguments turn on somewhat different factual and legal issues, we deal with them in two groups: the individual officers who were at the scene and their supervisors.

  1. Individual Officers' Liability

    Soto and Gotay moved for directed verdicts at trial arguing that on the evidence presented, the jury could not have reasonably imposed liability under Sec. 1983. While they did not move for a judgment notwithstanding the verdict, they did make a post-verdict motion for a new trial alleging that the verdict was contrary to the law and against the weight of the evidence. Gotay made a separate motion to alter or amend the judgment under Fed.R.Civ.P. 59(e), arguing that the evidence was insufficient to establish that he was the cause of plaintiff's injuries.

    We note first the standards of review that guide our inquiry. In reviewing the denial of a motion for directed verdict or for judgment notwithstanding the verdict " 'we must examine the evidence in the light most favorable to the plaintiff and determine whether there are facts and inferences reasonably drawn from those facts which lead to but one conclusion--that there is a total failure of evidence to prove plaintiff's case.' " Mayo v. Schooner Capital Corp., 825 F.2d 566, 568 (1st Cir.1987) (quoting Fact Concerts, Inc. v. City of Newport, 626 F.2d 1060, 1064 (1st Cir.1980), vacated on other grounds, 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)); see MacQuarrie v. Howard Johnson Co., 877 F.2d 126, 128 (1st Cir., June 2, 1989); Gonzalez-Marin v. The Equitable Life Assurance Society, 845 F.2d 1140, 1144 (1st Cir.1988); Robinson v. Watts Detective Agency, 685 F.2d 729, 732 (1st Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 728, 74 L.Ed.2d 953 (1983). As to the denial of a new trial motion:

    [W]e will reverse a judge's decision not to grant a motion for a new trial 'only if the verdict is so seriously mistaken, so clearly against the law or the evidence, as to constitute a miscarriage of justice.' Levesque v. Anchor Motor Freight, Inc., 832 F.2d 702, 703 (1st Cir.1987); see Mayo v. Schooner Capital Corp., 825 F.2d 566, 570 (1st Cir.1987). This strict standard of review is especially appropriate if the motion for new trial is based on a claim that the verdict is against the weight of the evidence. Wells [Real Estate v. Greater Lowell Board of Realtors], 850 F.2d at 811 [ (1st Cir.1988) ]. Thus, our review is limited solely to determining if the court abused its discretion in making this decision. Freeman

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    v. Package Machinery Co., 865 F.2d 1331, 1334 (1st Cir.1988); Mayo, 825 F.2d at 568.

    MacQuarrie, at 131. The standard in reviewing a denial of a Rule 59(e) motion is, likewise, one of abuse of discretion. See Earnhardt v. Commonwealth of Puerto Rico, 744 F.2d 1, 3 (1st Cir.1984); Thomas v. Farmville Manufacturing Co., 705 F.2d 1307, 1307-08 (11th Cir.1983).

    In assessing the imposition of liability under Sec. 1983, we must first ask "(1) whether the conduct complained of was committed by a person acting under the color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled on other grounds, Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). There are two aspects to the second inquiry: "(1) there must have been a deprivation of federally protected rights, privileges or immunities, and (2) the conduct complained of must have been causally connected to the deprivation." Woodley v. Town of Nantucket, 645 F.Supp. 1365, 1369 n. 4 (D.Mass.1986) (emphasis added). Since the defendants do not deny that they were acting under color of Commonwealth...

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