MEMORANDUM OPINION AND ORDER
District Judge Bruce S. Jenkins
Subsequent to this court's entry of judgment in favor of Defendants,1 Defendants and Plaintiff filed an appeal and cross appeal, respectively.2 Additionally, Plaintiff filed a motion seeking judgment as a matter of law under Rule 50, or a new trial under Rule 59.3 On March 16, 2015, the Tenth Circuit issued an order abating parties' cross-appeals pending this court's resolution of Plaintiff's motion.4
The matter came before the court for hearing on April 10, 2015. Diana Huntsman appeared on behalf of Plaintiff. Andrew Morse and Scott Young appeared on behalf of Defendants.5 After hearing arguments from counsel, the court reserved on Plaintiff's motion,allowing counsel to submit further briefing.6 Defendants filed a supplemental brief on April 17, 2015,7 which Plaintiff responded to on April 27, 2015.8 Thereafter, parties filed a stipulated motion seeking leave to file limited additional briefing,9 which the court granted.10 As such, Defendants filed additional briefing on May 14, 2015,11 which Plaintiff responded to on May 21, 2015.12
Having considered the parties' briefs, the arguments of counsel, and the relevant law, the court determines that (i) Plaintiff is entitled to nominal damages as a matter of law; (ii) the failure to adequately instruct the jury on nominal damages was plain error (but correctable error short of a new trial); and (iii) Plaintiff did not waive his right to nominal damages under the Invited Error Doctrine. Plaintiff's motion is PARTIALLY GRANTED. The judgment shall be amended in favor of Plaintiff and against Defendants in the amount of $1 nominal damages.
In his motion, Plaintiff argues he is entitled to judgment as a matter of law under Rule 50, because he is entitled to damages.13 The damages Plaintiff seeks are twofold. The first is nominal damages: "When the Court granted Mr. Stoedter a directed verdict as it relates to the 4thAmendment, it held that Mr. Stoedter's Constitutional rights had been violated. That violation alone should give Plaintiff a claim for damages."14 The second is compensatory damages: "In addition, the Court heard evidence from two physicians that the Plaintiff was in fact injured, from his encounter with the Defendant police officers, and as such, is entitled to damages."15 Alternatively, Plaintiff's motion seeks a new trial under Rule 59 on damages, arguing that the jury's award of no damages was against the weight of the evidence.16
Plaintiff is not entitled to compensatory damages as a matter of law under Rule 50. As Defendants note,17 "[a] party is entitled to judgment as a matter of law 'only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position,'"18 and "in considering a motion for a directed verdict, the court does not weigh the evidence, but draws all factual inferences in favor of the nonmoving party."19 In the present case, the evidence for Plaintiff's alleged injuries does not point only one way. The evidence does not so uniformly and persuasively favor Plaintiff that compensatory damages must be awarded. As such, the motion for compensatory damages is denied.
The central issue before the court is Plaintiff's entitlement to nominal damages. The following brief procedural history provides helpful context to the subsequent discussion of nominal damages:
• On August 6, 2014, the court issued its Memorandum Opinion and Order denying parties' summary judgment motions. In addition, the opinion determined that, upon arriving at the scene of events, Defendants did not have reasonable suspicion that an armed robbery or similar armed crime was afoot. Thus, a subsequent jury determination on whether reasonable suspicion or probable cause existed to support Defendants' actions would be limited in scope to the time period following the officers' approach and initial orders.20
• On January 7, 2015, Defendants provided the court with proposed jury instructions.21 Included was the following instruction on nominal damages:
INSTRUCTION NO. _
If you conclude that Officer Madsen and/or Officer Gates unreasonably detained Mr. Stoedter or used excessive force in detaining Mr. Stoedter, but also find that Mr. Stoedter was unable to demonstrate monetary damage, you shall award Mr. Stoedter nominal damages of a trivial sum, such as $1.00 or less.
__________
MUJI 15.17 (modified as shown)
• On January 7, 2015, Plaintiff also provided the court with proposed jury instructions. Plaintiff's proposal did not include an instruction on nominal damages.22
• The court held trial January 12-16, 2015 on the case's remaining issues.23
• After the parties rested, both Plaintiff and Defendants moved for directed verdict. Specifically, Plaintiff requested a directed verdict on his claim that Defendants violated his Fourth Amendment rights.24
• The court granted Plaintiff's motion, finding the manner in which Defendants' investigation was conducted violated the Fourth Amendment.25 Specifically, the court ruled from the bench as follows:
Now in reference to what plaintiff's counsel characterized as a motion for directed verdict, it's really a reiteration of a motion for summary judgment having to do with the violation -- or alleged violation of Amendment Four. And I might indicate that we've previously dealt with probable cause and reasonable suspicion prior to the time that the police arrived at the home.
I could note that the concerned citizen reported no crime. I can note as well that it's not unlawful to possess a shotgun. The citizen reported only the removal of the shotgun from a car, but reported no improper use of the shotgun.
When the officers arrived at the home in separate cars, they had put on body armor. They saw two men on the porch. They were smoking, seated -- perhaps one standing. There was no visible shotgun. There was no effort to go in the house. There were no menacing movements from either man. There was no effort to run. One matched the description of the man who removed the shotgun from the car.
There is no dispute -- indeed, the parties agree that the officers spoke first. The officers at least had guns at ready when they spoke. At that time there was no observable crime. At that time the scene was benign. The closest analog in the cases was stopping a person on the street seeking information. But in this case the plaintiff was not free to leave.
At the moment the officers pointed their guns and told plaintiff to put up his hands and come off the porch without first making an inquiry as to the existence of a shotgun or explaining why they were there under the Constitution they were required to use the least intrusive method of acquiring information there was a violation of the Fourth Amendment, which continued until the matter was resolved.
The officers, body armored and guns at ready, had a duty to inform, speak out and ask about the subject of the reported citizen's concern. A simple explanation of why the officers were present would have diffused the matter at the beginning. That was not done. Just as an officer could investigate a citizen walking on the street, could ask questions, but such citizen is free to leave or free to not respond, or himself ask what was going on even in a rude manner.
As you know, there are three kinds of stops which justify detention. The first two are not present. The third, consensual, was not used. Not every investigation of a citizen's observation requires guns and handcuffs. The manner in which this investigation was conducted violated the Fourth Amendment, and plaintiff's motion, whether we characterize it as a renewed motion for summary judgment or a motion for a directed verdict on that subject, is granted. And the Court reserves the right to put in written form with appropriate citations what we've just done.
But I should note in passing, in the memorandum opinion and order denying the parties' respective motions forsummary judgment, the Court determined that upon arriving at the scene and approaching plaintiff and Jacobson, defendants did not have reasonable suspicion of armed robbery. Counsel for defendants had previously acknowledged in the February 3rd, 2014 hearing that defendants had no probable cause to arrest plaintiff. In the summary judgment order, the Court pointed out that upon arriving at the scene, defendants knew a caller reported a male with a shotgun entering a home. After that was clarified, a white and a red vehicle were parked in front of the home, and the incident involved a five-foot-five male, 170 pounds, wearing jeans and a gray T-shirt.
In finding no reasonable suspicion, the Court looked at the totality of the circumstances and drew comparisons to United States vs. Mosley and United States vs. Conner. Unlike the facts in Mosley and Conner, the encounter between plaintiff and defendants took place in the middle of the afternoon, in an area not known to be dangerous, without plaintiff attempting to run away when approached, and without plaintiff making furtive gestures consistent with or hiding or retrieving a weapon. Considering these circumstances, the Court found there was no reasonable suspicion of an armed robbery or other armed crime.
The relevant question remaining, after the Court's order denying summary judgment, is simple: What were defendants allowed to do upon arrival if they did not have reasonable suspicion or probable cause? That question is herein answered: Defendants were allowed to do no more than what a reasonable officer would do during a voluntary, consensual encounter.
The Fourth Amendment of the United States Constitution states as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
...
