George Rakovich v. Gregory Wade and Darryl Drake, George Rakovich v. Chester Kass , 819 F.2d 1393 ( 1987 )

RIPPLE, Circuit Judge.

The appellee, George Rakovich, brought this action to recover damages for an alleged violation of his first amendment rights. He charged that the appellants, officers of the Greenfield, Wisconsin police department, subjected him to a criminal investigation in retaliation for his earlier opposition to, and criticism of, Greenfield city officials. He alleged that the officers conducted that investigation despite their knowledge that no reasonable grounds existed to suspect him of a criminal act. After a jury trial, Mr. Rakovich was awarded $50,000 for compensatory damages and $90,000 for punitive damages. In addition, the district court awarded him $41,285.25 for attorneys’ fees, 602 F.Supp. 1444. This appeal followed.

We affirm the jury’s finding of liability. However, we conclude that the jury’s compensatory damage award is grossly excessive and its punitive damage award is greater than the amount necessary to deter similar future conduct or to punish the defendants. Accordingly, we remand this case to the district court for a new trial limited to the issue of damages.

I

This case began with the burglary of Cars Unlimited, a used car dealership located in Greenfield, Wisconsin. On the night of July 2, 1981, Vincent Sheehan, an employee of Cars Unlimited, noticed that two men had broken into a garage on the property. He alerted the police while the burglary was still in progress. Police officers from both Greenfield and Greendale, a neighboring city, were sent to the scene. Upon arriving at the garage, Officers Mary Foley and William Myers captured the burglary suspects.

A short time after the arrests, only Officer Foley, the Greenfield officer, received a commendation for her work. Apparently, the commendation was based on the misapprehension that Officer Foley had single-handedly captured both suspects. As more information became available about the arrests, a controversy arose concerning the propriety of the Foley commendation. Therefore, Chester Kass, Chief of the Greenfield Police Department, assigned Detective. Gregory Wade and Sergeant Darryl Drake to investigate this matter. As part of their investigation, Officers Wade and Drake interviewed Mr. Sheehan. At the close of the interview, after describing the arrest, Mr. Sheehan told the investigating officers that two other people had already spoken to him regarding the commendation. He was able to identify one of those persons as Charles Salbashian, another Greenfield police officer. Mr. Sheehan was unclear about the second person’s identity, although he was certain that both men intimated that Officer Foley received her commendation because her father was a judge — not because her conduct in capturing the burglary suspects was extraordinarily meritorious. Mr. Sheehan was later able to identify the second man as George Rakovich.¹ According to Mr. Sheehan, on a number of occasions, Mr. Rakovich returned to Cars Unlimited to speak with him about the arrest. Detective Wade was able to corroborate that statement with photographs he took of Mr. Rakovich at Cars Unlimited on September 12, 1981.

Officers Wade and Drake presented their information to Chief Kass and, subsequently, to Frank T. Crivello, the Assistant District Attorney assigned to prosecute the Cars Unlimited burglary. Mr. Crivello was concerned by the Rakovich and Salbashian discussions with Mr. Sheehan — the chief witness in the burglary case. Accordingly, he suggested that Robert Scopoline, a sergeant of the Milwaukee County Sheriffs Department, interview Mr. Rakovich in an attempt to determine why he was contacting Mr. Sheehan. Sergeant Scopoline did, in fact, interview Mr. Rakovich. At that meeting, he advised Mr. Rakovich of his Miranda rights, explained the nature of the investigation, and informed him that the conversation was being recorded.

Before receiving Sergeant Scopoline’s report, Mr. Crivello decided to summon Mr. Rakovich and Mr. Salbashian to his office for a charging conference. This decision was based solely on the information presented orally to him by Officers Wade and Drake. Shortly before the charging conference, Chief Kass sent Mr. Crivello a strongly worded letter concerning the Ra-kovich case. In that letter, Chief Kass concluded that:

The investigation leaves no question in my mind that the unlawful conduct of these two public officers [Rakovich and Salbashian] has violated the trust and confidence of their positions as public officers. Their intentions and actions were premeditated and deliberate; designed to damage Officer Foley, undermine and damage the department’s functioning and the city’s reputation, and the [burglary] investigation.

Ex. 24, Appellants’ App. at 68. In addition, Chief Kass informed the newspapers on September 21, 1981 that Mr. Rakovich would be called before a charging conference. Mr. Rakovich apparently did not receive notice of the conference until three days later.

The charging conference, conducted on October 16 and open to the public, was an investigative procedure in which the district attorney could attempt to clarify the allegations which had been made. At such a conference, it was not unusual for the investigating officers to suggest statutes which possibly had been violated. This case was no exception; Officers Wade and Drake presented the district attorney with a number of criminal statutes which they believed to be applicable to Mr. Rakovich’s activities. Those statutes dealt with criminal defamation, criminal injury to business, and misconduct in public office.

At the conclusion of the charging conference, after hearing all of the available evidence, Mr. Crivello took the matter under advisement. Then, on December 7, 1981, he sent letters to all interested parties to inform them that, after reviewing the entire record, he did not believe that Mr. Rakovich had violated any Wisconsin statute. The entire investigation was, therefore, closed.

Based on this series of events, Mr. Rako-vich filed this action under 42 U.S.C. § 1983. He alleged that Officers Wade and Drake and Chief Kass decided to investigate him to retaliate for his political opposition to the Greenfield administration.² He contended that the first amendment gives him a protected right to both investigate the Foley commendation and criticize the administration for conferring it. He claimed that, as a result of the appellants’ activities, he was humiliated, embarrassed, and lost standing in the community.

The appellants conceded that they were investigating Mr. Rakovich. However, they denied having a retaliatory motive. Rather, they contended that the investigation was justified because Mr. Rakovich was possibly tampering with the chief witness to a felony burglary. In addition, the appellants contended that they had information indicating that confidential police information was being leaked to Mr. Shee-han via Mr. Rakovich. Based on‘these facts, the appellants argue that they had authority to investigate Mr. Rakovich.

At trial, the jury found that the appellants had conducted a retaliatory investigation which was designed, at least in part, to discourage Mr. Rakovich from exercising his first amendment rights. The jury awarded Mr. Rakovich $140,000 in compensatory and punitive damages.

In this appeal, three issues have been raised. First, the appellants contend that they have not violated Mr. Rakovich’s first amendment rights. They argue that a first amendment claim cannot be raised when the plaintiff is unable to prove actual damages apart from the type of harm which is normally associated with defamation. Alternatively, the appellants claim that there was insufficient evidence to support a finding that they acted with a retaliatory motive. Second, the appellants contend that they should be exonerated because they were protected by both qualified and absolute immunities. Finally, the appellants contend that, even if they violated Mr. Ra-kovich’s first amendment rights, the jury’s damage award was excessive.

II

Liability

The appellants initially contend that Mr. Rakovich did not prove a violation of his first amendment rights. Relying on Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), and related cases, the appellants argue that Mr. Rakovich’s damages amount to nothing more than injury to his reputation and, thus, are not actionable under section 1983. Rather, according to the appellants, Mr. Rakovich had to show that a more defined interest was abridged in order to state a claim.

Mr. Rakovich’s claims should have been dismissed if he merely alleged an injury to his reputation. See Mark v. Furay, 769 F.2d 1266, 1271 (7th Cir.1985). Section 1983 can only redress injuries to constitutionally-protected rights; it is well-settled that the Constitution cannot be invoked to redress mere defamation. Paul, 424 U.S. at 712, 96 S.Ct. at 1165. However, in this case, Mr. Rakovich is not merely alleging that the Greenfield officers acted to defame him. Rather, he claims that Chief Kass, Detective Wade, and Sergeant Drake investigated him with the intention of retaliating against him for the exercise of first amendment rights. The alleged harm, then, is that Mr. Rakovich’s first amendment rights have been violated, not that he has been defamed. See Anderson v. Central Point School Dist. No. 6, 746 F.2d 505, 507-08 (9th Cir.1984).³

As this circuit recognized under different circumstances in Matzker v. Herr, 748 F.2d 1142 (7th Cir.1984), “[a]n act taken in retaliation for the exercise of a constitutionally protected right is actionable under § 1983_” Id. at 1150. Mr. Rakovich had a protected interest in commenting on the activities of local government officials; he therefore stated a claim which, because it was supported by sufficient evidence, was properly put to the jury. Mr. Rakovich was not required, as a predicate to his first amendment action, to prove actual damages. As the Sixth Circuit stated in Walje v. City of Winchester, 773 F.2d 729, 732 (6th Cir.1985):

As a basic element of our fundamental law, the First Amendment’s protections of speech, press and assembly serve not only as an instrument of successful self government, but as symbols of the kind of society we wish to be. Because it serves more than merely instrumental goals, the right of free speech may be violated without accompanying consequential or “actual” injury.

Accordingly, by alleging government conduct taken in retaliation for the exercise of protected first amendment rights, Mr. Ra-kovich stated a claim which is actionable under section 1983. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471 (1977) (cause of action where defendant refused to rehire plaintiff because he exercised rights protected under the first amendment); Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972) (government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech”); see also Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982).

Turning to the particular facts of this case, we conclude that the jury’s finding of liability is supported by the record. The appellants admit that, at the very least, they investigated Mr. Rakovich. They argue, however, that Mr. Rakovich did not prove that they acted with an intent to retaliate against him for the exercise of his first amendment rights. We disagree. The jury was presented with sufficient evidence concerning the appellants’ investigation of the Foley commendation to entitle them to infer a retaliatory motive.⁴ See Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir.1979). Therefore, we affirm the judgment of the district court insofar as it finds the appellants liable for violating Mr. Rakovich’s first amendment rights.⁵

Ill

Damages

Although we leave undisturbed the jury's assessment of liability, we disagree with the amount of its compensatory and punitive damage awards. In this circuit, the standards for reviewing these types of awards are well-settled. With respect to compensatory damages, we may set aside the jury's verdict only when we find that it is grossly excessive or shocking to the judicial conscience. Strauss v. Stratojac Corp., 810 F.2d 679, 686 (7th Cir.1987). With respect to punitive damages, we may set aside a jury award only when it "exceeds what {is] ... required to serve the objectives of deterrence and punishment." McKinley v. Trattles, 732 F.2d 1320, 1327 (7th Cir.1984). In this case, the jury's compensatory and punitive awards have transgressed both standards. Accordingly, we remand this case to the district court for a redetermination of damages.

A. Compensatory Damages

The jury awarded Mr. Rakovich $50,000 for compensatory damages. That award is grossly excessive. In Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1978), the Supreme Court noted that, as a general proposition, compensation for the deprivation of a constitutional right must be "tailored" to the particular interests and violations which are involved. We do not believe that the jury sufficiently respected this principle.

Therefore, on remand, Mr. Rakovich will be entitled to nominal damages to compensate for the technical violation of his first amendment rights. See Davis v. Village Park II Realty Co., 578 F.2d 461, 463 (2d Cir.1978); see also Memphis Community School Dist. v. Stachura, - U.S.-, 106 S.Ct. 2537, 2544 n. 11, 91 L.Ed.2d 249 (1986). Additional damages should not be awarded for the constitutional violation unless Mr. Rakovich can present the jury with substantiated proof of an actual first amendment injury. Memphis Community, 106 S.Ct. at 2544. Additionally, Mr. Rakovich will be able to recover for demonstrable emotional distress, physical and mental pain and suffering, and injury to his reputation. Those types of damages can flow directly from the constitutional violation and, when proven, are compensa-ble. See Crawford v. Garnier, 719 F.2d 1317, 1324-25 (7th Cir.1983); see also Memphis Community, 106 S.Ct. at 2544.⁶ Again, we stress that those damages must be proven and causation must be traced to the appellants' unconstitutional activities.⁷

B. Punitive Damages

Mr. Rakovich also was awarded punitive damages. Given the facts of this case, we believe that an award of this type was justifiable. In assessing liability, the jury obviously concluded that the appellants acted with a desire to retaliate against Mr. Rakovich. We believe that such a retaliatory motivation is, under the facts presented here, sufficient to support an award of punitive damages. Therefore, the jury was entitled to award punitive damages as necessary to deter future police conduct of this nature. See Endicott v. Huddleston, 644 F.2d 1208, 1217 (7th Cir.1980). However, we believe that the amount which the jury awarded, $90,000,⁸ exceeded that which is necessary to effectuate deterrence.

Accordingly, we must remand this case for a new trial which is limited to a redeter-mination of both compensatory and punitive damages.⁹ On remand, the district court is free to adjust — in its discretion— the award of attorneys’ fees to reflect the extent of the appellee’s success. See Hamilton v. Daley, 777 F.2d 1207, 1213 (7th Cir.1985); Smiddy v. Varney, 665 F.2d 261, 268 (9th Cir.1981), cert. denied, 459 U.S. 829, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982). So Ordered.

1 . Mr. Rakovich was a member of the Greenfield Civil Service Commission at the time. However, he apparently was not acting in his official capacity while interviewing Mr. Sheehan.

2 . In his briefs in this court, the appellee characterizes the appellants' retaliatory intent as being sparked by ill-will between the appellee and Chief Kass. First, trial testimony indicated that the two had argued on at least one occasion. Second, as the appellee described this case, the appellants "viewed Rakovich as questioning the Chief of Police, in Kass’s sensative [sic] public relations escapade, and ... [they] saw their duty as one of putting Rakovich in his place_” Appellee’s Br. at 19.

3 . In Anderson v. Central Point School Dist. No. 6, 746 F.2d 505 (9th Cir.1984), the court stated that:

Defendants contend that because the plaintiff lost no salary as a result of the defendants’ action, we should treat the case as one for defamation and hence not maintainable under section 1983 in light of Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Defendants’ position, however, confuses the cause of action with the nature of the damages suffered. In Carey v. Piphus, 435 U.S. 247, 265, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978), the Court observed that damages in section 1983 cases must be tailored to the particular interest protected. Here, the protected interest is the appellant’s first amendment rights, and his damages are the result of a violation of those rights.

746 F.2d at 507-08.

4 . Charitably read, the jury instructions inartfully explained the process for resolving first amendment claims involving the possibility of mixed motives (legitimate law enforcement versus retaliation). See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). However, in the absence of any specific challenge to those instructions, we will not review them on appeal. See Thor Power Tool Co. v. Weintraub, 791 F.2d 579, 584 (7th Cir.1986); Davis v. Consolidated Rail Corp., 788 F.2d 1260, 1267-68 (7th Cir.1986); Exxon Corp. v. Exxene Corp., 696 F.2d 544, 549 (7th Cir.1982); see also Spanish Action Comm. of Chicago v. City of Chicago, 766 F.2d 315, 318-19 (7th Cir.1985); Parrett v. City of Connersville, 737 F.2d 690, 698 (7th Cir.1984), cert. dismissed, 469 U.S. 1145, 105 S.Ct. 828, 83 L.Ed.2d 820 (1985); Platis v. Stockwell, 630 F.2d 1202, 1206-07 (7th Cir.1980).

5 . Appellants also submit that, with respect to their activities in conjunction with the charging conference, they are entitled to the absolute immunity accorded to a prosecutor. See generally Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). We disagree. Our review of the record convinces us that the defendants’ activities did not involve the initiation or conduct of a criminal prosecution. Their activities were investigative, not prosecutorial, in nature. See Harlow v. Fitzgerald, 457 U.S. 800, 811 n. 16, 102 S.Ct. 2727, 2734 n. 16, 73 L.Ed.2d 396 (1982); Butz, 438 U.S. at 515-17, 98 S.Ct. at 2915-16; Rex v. Teeples, 753 F.2d 840, 843-44 (10th Cir.), cert. denied, — U.S.-, 106 S.Ct. 332, 88 L.Ed.2d 316 (1985).

Qualified immunity was not available to the defendants here. There can be no question that the right to criticize the government without becoming the object of retaliation by government officers is a "clearly established ... constitutional right of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

Because the issue of qualified immunity is properly addressed to the court, not the jury, see Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985); Benson v. Allphin, 786 F.2d 268, 274 (7th Cir.), cert. denied, — U.S.-, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986), there was no need to give an instruction to the jury on the issue. Nevertheless, the trial judge, without objection, did give an instruction on qualified immunity. Appellants’ lack of objection at trial precludes our review of the matter on appeal. See supra note 4. Putting aside for a moment the lack of objection, we do not believe that this instruction substantially prejudiced the defendants' rights. Indeed, the trial judge’s statement of the law was a good deal more favorable to the position of the defendants than it should have been. The court told the jury that subjective good faith was a defense. Contrary to the instructions proffered by the parties and accepted by the district judge, qualified immunity is a doctrine under which "government officials performing discretionary functions [1 generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct at 2738.

6 . In Nekolny v. Painter, 653 F.2d 1164 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982), we noted that "[a] single statement by a party that he was ``depressed,' ``a little despondent,' or even ``completely humiliated,' ... is not enough to establish injury Id. at 1172-73. However, that is not to say that an injured person's testimony, standing alone, will never be sufficient to establish damages. See Crawford v. Garnier, 719 F.2d 1317, 1324 (7th Cir.1983). Rather, under Nekolny, when the injured party provides the sole evidence, he must reasonably and sufficiently explain the circumstances of his injury and not resort to mere conclusory statements.

7 . In instructions which were apparently not contested at trial-and certainly not contested in this court-the trial judge instructed the jury that liability could be premised on one or more of the following acts: 1) continuing an investigation while knowing that Mr. Rakovich had not committed a crime; 2) knowingly causing Mr. Rakovich to be summoned before the District Attorney for a charging conference; and 3) releasing information to the press about the charging conference. The jury was also instructed that Mr. Rakovich's theory of the case was that these acts were taken in retaliation for the exercise of his first amendment rights. The district court further instructed the jury that, if such acts were undertaken "to harass or stigmatize any citizen solely in retaliation for engaging in an activity protected by the United States Constitution," such acts would be unlawful. The jury returned a general verdict. It is not known, therefore, whether the jury believed that all or a lesser number of these activities were established. Since the appellants failed to object to such a generalized instruction, we must assume that they were willing to permit the case to go to the jury on Mr. Rakovich’s theory that the events were part of a single scheme of retaliation for the exercise of first amendment rights. See Thor Power Tool Co. v. Weintraub, 791 F.2d 579, 584 (7th Cir.1986); Davis v. Consolidated Rail Corp., 788 F.2d 1260, 1267-68 (7th Cir.1986); Exxon Corp. v. Exxene Corp., 696 F.2d 544, 549 (7th Cir.1982); see also Spanish Action Comm. of Chicago v. City of Chicago, 766 F.2d 315, 318-19 (7th Cir.1985); Parrett v. City of Connersville, 737 F.2d 690, 698 (7th Cir.1984), cert. dismissed, 469 U.S. 1145, 105 S.Ct. 828, 83 L.Ed.2d 820 (1985); Platis v. Stockwell, 630 F.2d 1202, 1206-07 (7th Cir.1980).

8 . The jury assessed punitive damages of $40,000 against appellant Kass. Appellants Wade and Drake were each assessed $25,000 for punitive damages.

9 . On remand, the defendants-appellants may wish to reexamine their interests and determine whether separate counsel would be appropriate for each defendant or particular defendant-groups which do not share the same interests.