Family Forum / Parenting / Spanking / November 2006

http://kidjacked.com/legal/keller_v_stockton.asp

United States District Court,
E.D. California
Dennis Keller and Crystal Keller, Plaintiffs,
v.
City of Stockton, et al., Defendants
No. CIV S-04-1325 LKK/DAD

July 20, 2006

David John Beauvais, Oakland, CA, for Plaintiffs

Joseph Martin Quinn, III, Meyers, Nave, Riback, Silver & Wilson,
Oakland, CA, Shelley Lorene Green, City of Stockton, City Attorney's
Office, Daniel Carl Cederborg, Office of the County Counsel, County of
San Joaquin, Stockton, CA, for Defendants.

Order

Lawrence K. Karlton, Senior District Judge.

*1 Pending before the court are motions for judgment as a matter of law
("JMOL"), for a new trial, or for remittitur brought by the City of
Stockton, Officer Kathryn Henderson, and Sergeant Ken Praegitzer
("defendants"). Plaintiffs, Dennis and Crystal Keller, oppose these
motions. For the reasons set forth below, defendants' motion for
remittitur is granted in part and denied in part. All other motions
must be denied.

I. Factual Background
On July 10, 2002, four-year-old Crystal Keller was taken from her day
care provider's house in Sacramento by Stockton Police Officers Kathryn
Henderson ("Henderson") and Ken Takeda ("Takeda") and placed at a
children's shelter in Stockton. [FN1] The removal was approved by
Henderson's supervisor, Stockton Police Sergeant Ken Praegitzer
("Praegitzer"). Trial Transcript ("TT") at 41:8- 9. No warrant was
obtained prior to removing Crystal. TT at 42:4-5.

On July 9, 2004, plaintiffs filed suit against the City of Stockton
("City"), the County of San Joaquin, Child Protective Services worker
Jose Romero, and Officers Henderson and Praegitzer, alleging
unreasonable seizure of Crystal from the custody of her father. Suit
was premised on 42 U.S.C. § 1983 and alleged violations of the Fourth
and Fourteenth Amendments to the U.S. Constitution. [FN2] Specifically,
plaintiffs alleged that defendants unreasonably seized Crystal and
unlawfully interfered with their parent-child relationship. Amend.
Compl. at 4:23; TT at 426:4.

FN1. Officer Takeda was not named as a defendant.

FN2. During discovery, plaintiffs dismissed the County of San Joaquin
and Jose Romero.

After a four-day trial, which ended on March 31, 2006, the jury found
that the City, Henderson, and Praegitzer violated the Kellers' civil
rights and awarded compensatory damages to Dennis Keller in the amount
of $100,000 and to Crystal Keller in the amount of $500,000. The jury
awarded punitive damages against Henderson and Praegitzer in the amount
of $1,000,000 for each plaintiff, for a total of $2,600,000 in damages.
Special Verdict, filed March 31, 2006. Defendants filed the present
motions on April 17, 2006.

II. Analysis
Defendants make the following arguments: (1) the court erred in not
instructing the jury as to the rules for protective custody set forth
in California Penal Code § 279.6; (2) the jury's compensatory damages
are so high they constitute a denial of justice; (3) plaintiffs failed
to adequately support their claim for punitive damages; (4) the jury's
punitive damages award denied Sergeant Praegitzer and Officer Henderson
due process; and (5) that the jury's punitive damages awards "fail due
process excessiveness scrutiny." Defs.' Mot. at 2.

Defendants urge the court to take one or more of the following actions:
(1) order a new trial; (2) order plaintiffs to remit a portion of the
compensatory damages or face a new trial on compensatory damages; (3)
enter judgment as a matter of law in favor of Sgt. Praegitzer and
Officer Henderson on plaintiffs' punitive damages claim; (4) order
plaintiffs to remit a portion of the punitive damages or face a new
trial on punitive damages. Id. Below, the court addresses defendants'
arguments in the context of the motions in which they are raised.

A. Motion for Judgment as a Matter of Law
*2 Praegitzer and Henderson move for judgment as a matter of law
pursuant to Fed.R.Civ.P. 50 on the issue of punitive damages because
they contend "there was insufficient evidence presented at trial to
support the jury's conclusion that defendants acted either with malice
or in reckless disregard of the Kellers' rights." Defs .' Mot. at 2,
11. Defendants also assert that plaintiffs had the burden of
establishing the appropriate amount of punitive damages and that they
were required to present evidence regarding defendants' ability to pay
punitive damages. Defendants' arguments are unavailing.

1. Standards

Defendants failed to move for JMOL before submission of the case to the
jury. By not doing so, they failed to comply with the procedural
prerequisite for renewing their motion for JMOL after trial, and thus,
the court is precluded from reviewing the sufficiency of evidence.
Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 886-87 (9th Cir.2002);
Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1345
(9th Cir.1985). The Ninth Circuit construes this requirement strictly.
Farley, 786 F.2d at 1346 ("the requirement that [a JMOL motion] be made
at the close of all the evidence is to be strictly observed").

When a party loses its right to challenge the sufficiency of the
evidence because it failed to file a procedurally-sound Rule 50(b)
motion, the court is limited to reviewing the jury's verdict for plain
error and should reverse only if such plain error would result in a
"manifest miscarriage of justice." Janes, 279 F.3d at 888 (9th
Cir.2002). See also Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136,
1148 (9th Cir.2001)("We will review for plain or fundamental error [in
a civil case] ... where the integrity or fundamental fairness of the
proceedings in the trial court is called into serious question"). If
such a finding is made, this court is still not required to reverse
unless the error "seriously affect[ed] the fairness, integrity, or
public reputation of judicial proceedings." United States v. Cooper,
173 F.3d 1192, 1203 (1999)(internal quotation and citations omitted).

As explained below, there is sufficient evidence from which a jury
could conclude that punitive damages should be awarded.

2. A Reasonable Jury Could Conclude that Defendants Acted With
Deliberate Indifference to Plaintiffs' Rights

The court instructed the jury that "plaintiff has the burden of proving
that punitive damages should be awarded, and the amount, by a
preponderance of the evidence," and that punitive damages are
appropriate if the defendant's conduct "was malicious or in reckless
disregard of plaintiff's rights." [FN3] See Jury Instructions,
Instruction No. 31, filed March 31, 2006. The instruction further
stated that "conduct is in reckless disregard of plaintiff's rights if,
under the circumstances, it reflects complete indifference to the
safety and rights of others." [FN4] Id. Defendants contend that there
is no evidence from which a jury could conclude that Praegitizer or
Henderson acted with malice or in reckless disregard of the Kellers'
rights. I cannot agree.

FN3. See Dang v. Cross, 422 F.3d 800, 805-808 (9th Cir.2005) (Punitive
damages may be awarded in 42 U.S.C. § 1983 cases if defendant's
conduct was malicious, oppressive, or in reckless disregard of
plaintiff's rights).

FN4. This instruction complies with the Supreme Court's conclusion that
punitive damage awards in § 1983 cases "did not require a showing of
actual malicious intent; they permitted punitive damage awards on
variously stated standards of negligence, recklessness, or other
culpable conduct short of actual malicious intent. Smith v. Wade, 461
U.S. 30, 45 (1983).

*3 Defendants argue that they followed city policy and there was no
reason to believe that the policy deviated from the requirements of the
law. The record, however, reflects that defendants were aware of the
state-mandated procedures and standards that they were obligated to
follow--specifically, Welfare and Institutions Code § 305--and that
they failed to do so. Defendants testified that they understood the law
governing their conduct as codified in § 305--that an "imminent
threat" must be present. [FN5] Henderson testified that a police
officer is allowed to take a child without getting a warrant only when
he or she was in "imminent danger," and in this case, sexual abuse.
Trial Transcript ("TT") at 114-115. Henderson further testified that
the removal of a child from a parent should only happen in "exigent
circumstances" and that in this case, "it applied to sexual abuse," and
could happen only where "she [Crystal] had either been sexually abused
or at risk of being subjected to sexual abuse." TT at 111-112.

FN5. Section 305 of the California Welfare and Institutions Code
provides in pertinent part:

Any peace officer may, without a warrant, take into temporary custody a
minor:

(a) When the officer has reasonable cause for believing that the minor
is a person described in Section 300, and, in addition, that the minor
has an immediate need for medical care, or the minor is in immediate
danger of physical or sexual abuse, or the physical environment or the
fact that the child is left unattended poses an immediate threat to the
child's health or safety. In cases in which the child is left
unattended, the peace officer shall first attempt to contact the
child's parent or guardian to determine if the parent or guardian is
able to assume custody of the child. If the parent or guardian cannot
be contacted, the peace officer shall notify a social worker in the
county welfare department to assume custody of the child.

Despite her knowledge of the governing standards, Henderson removed
Crystal based on one-year-old allegations against Dennis Keller which
were previously investigated by Child Protective Services and found to
be inconclusive. TT at 108-111. Henderson conducted no independent
investigation as to Dennis Keller's parenting skills prior to removing
Crystal from his care. Id. Because such evidence could lead a
reasonable jury to conclude that defendants were aware of the legal
standards which govern the removal of Crystal but that they
nevertheless acted in "reckless disregard" of the Kellers' rights, the
court did not err in allowing the punitive damages claim to go to the
jury.

Defendants additionally assert that the punitive damages award cannot
stand because plaintiffs "made no effort to establish an appropriate
amount." [FN6] Defs.' Mot. at 12. Again, I cannot agree. First,
defendants have cited no binding authority, and the court has found
none, which requires plaintiffs to tell the jury exactly how much they
request in punitive damages. Secondly, it appears that plaintiffs met
their burden of establishing the appropriate amount of damages by
providing evidence that an award of punitive damages was appropriate,
and then asking the jury to use their judgment to determine the
appropriate amount. [FN7] While plaintiffs' counsel made no mention of
the specific amount during the trial, he explained to the jury in his
closing statement that the amount is to be "determined with the use of
reason and consideration of the damages that we've been able to prove
in this case." TT at 399-400. Plaintiffs' counsel also argued to the
jury that "defendants need to be told that what they did here is wrong
so they don't do it again," and that plaintiffs hoped "this case has
managed to serve a purpose to protect children in the future and
protect Crystal in the future." TT at 399-400. Based on plaintiffs'
instructions to the jury, the court holds that plaintiffs made an
effort to establish the appropriate amount of damages as required under
the law. No plain error occurred in allowing the punitive damages to be
presented to the jury on this account.

FN6. As both parties agree, and as the court instructed the jury,
plaintiffs bear the burden of establishing that punitive damages should
be awarded, and the amount, by the preponderance of the evidence. See
Ninth Cir. Jury Instructions, 7.5 Punitive Damages.

FN7. The court's instructions explained to the jury as to the proposed
nature of punitive damages, identified the damages as punishment for
civil wrongdoing, and explained that their imposition was not
compulsory.

*4 Finally, defendants contend that the punitive damages award cannot
stand because plaintiffs failed to present evidence of defendants'
financial condition, and that their motion for a new trial must be
granted on this account. Defs.' Mot. at 12. Defendants cite to a number
of cases from other circuits and from the California Supreme Court.
While it may be true that this is a requirement in other jurisdictions,
the Ninth Circuit has not imposed any such requirement for supporting a
punitive damages award. C.f. Morgan v. Woessner, 997 F.2d 1244, 1259
(9th Cir.1993)(remanding only state law portion of punitive damages
award for the purpose of reconsidering the award in light of the fact
that plaintiff must provide evidence of defendant's financial worth
under California law); see also Hilao v. Estate of Marcos, 103 F.3d
767, 781-82 & n. 7 (9th Cir.1996)(approved a jury's discretion to
consider financial condition as one relevant factor in awarding
punitive damages).

For all the reasons discussed above, no plain error was committed and
the court must accordingly deny defendants' motion for JMOL.

B. MOTION FOR A NEW TRIAL
Defendants request a new trial for two errors that they contend were
made by the court--namely, that the court erred in declining to give
defendants' special jury instruction based on California Penal Code §
279.6 and for providing a verdict form that "substantially confused the
issue of punitive damages." Defs.' Mot. at 9, 12. Defendants' arguments
are unavailing.

1. Standards

Defendants' failure to move for judgment as a matter of law does not
preclude their motion for a new trial under Fed.R.Civ.P. 59. Freund v.
Nycomed Amersham, 347 F.3d 752, 765 (9th Cir.2003). The Ninth Circuit
has articulated a number of different circumstances that warrant a new
trial, stating that district courts have discretion to grant Rule 59
motions when the verdict is "against the clear [or "great"] weight of
the evidence," when the evidence shows that the jury has reached a
"seriously erroneous result," and/or when the evidence shows that
acceptance of the verdict would cause a "miscarriage of justice." Id.;
EEOC v. Pape Lift, Inc., 115 F.3d 676, 680 (9th Cir.1997)(internal
quotations and citations omitted); see also Landes Constr. Co. v. Royal
Bank of Canada, 833 F.2d 1365, 1371 (9th Cir.1987)(Rule 59 motion for a
new trial should be granted if "the verdict is against the clear weight
of the evidence.... The judge can weigh the evidence and assess the
credibility of witnesses, and need not view the evidence from the
perspective most favorable to the prevailing party"); Roy v. Volkswagon
of America, 896 F.2d 1174 ("The trial court may grant a new trial, even
though the verdict is supported by substantial evidence, if the verdict
is contrary to the clear weight of the evidence, or is based upon
evidence which is false, or to prevent, in the sound discretion of the
trial court, a miscarriage of justice.") (citation omitted). While the
court undoubtedly has discretion to assess the evidence based on these
various standards ("against the clear weight of the evidence,"
"seriously erroneous result," "miscarriage of justice"), the standard
for finding insufficient evidence warranting a new trial remains
stringent.

2. Special Jury Instruction Based on Penal Code § 279.6

*5 Defendants maintain that the court erred when it declined to give
defendants' special jury instruction based on Penal Code § 279.6. They
argue that Section 279.6 "provided a complete defense to Plaintiffs'
federal claims," Defs.' Mot. at 9, and that the court's refusal to give
this instruction "deprived the jury of important legal considerations
probative of the reasonableness of the Defendants' actions." Defs.'
Repl. at 5.

Defendants' proposed instruction stated:

A law enforcement officer may take a child into protective custody
under any of the following circumstances:
It reasonably appears to the officer that a person is likely to conceal
the child, flee the jurisdiction with the child, or, by flight or
concealment, evade the authority of the court.
There is no lawful custodian available to take custody of the child.
There are conflicting custody orders or conflicting claims to custody
and the parties cannot agree which party should take custody of the
child.
When a law enforcement officer takes a child into protective custody
pursuant to this section, the officer shall do one of the following:
Release the child to the lawful custodian of the child, unless it
reasonably appears that the release would cause the child to be
endangered, abducted, or removed from the jurisdiction.
Obtain an emergency protective order ordering placement of the child
with an interim custodian who agrees in writing to accept interim
custody.
Release the child to the social services agency responsible for
arranging shelter or foster care.
Return the child as ordered by a court of competent jurisdiction.
(California Penal Code section 279.6)

Def.'s Supp. Jury Instructions, filed March 27, 2006. [FN8]

FN8. It appears defendants' proposed instruction was derived verbatim
from California Penal Code § 279.6(a)(1), (2), (3) and (b)(1), (2),
(3), (4).

First, the court notes that the proffer of the instruction was
untimely. The court instructed the parties in its February 23, 2006
Pretrial Order that counsel's "specific jury instructions shall be
filed fourteen (14) calendar days prior to trial." Defendants, however,
did not submit the proposed instruction at issue until the day before
trial. [FN9] As the court admonished counsel during oral argument, such
deadlines provide the court with an opportunity to research difficult
questions raised by the proposed instructions. Defendants' failure to
timely submit this instruction deprived the court of the appropriate
opportunity to consider its applicability. Nevertheless, the court
considered the instruction during trial, and declined to provide it to
the jury for a number of reasons stated on the record and further
elaborated in this order. TT at 253.

FN9. Local Rule 51-163 provides that "[u]nless the Court otherwise
orders or permits, requested jury instructions in civil and criminal
actions shall be filed with the Clerk and copies served on all parties
at the opening of the trial (emphasis supplied).

As the court explained to the parties during trial, the jury
instruction was inappropriate because the evidence overwhelmingly
demonstrated that defendants relied on Welfare and Institutions Code in
understanding the scope of their duties. [FN10] TT at 253. Defendants'
testimony consistently demonstrated that defendants relied on
California Welfare and Institutions Code § 305, which allows
warrantless removal of a child when it is reasonable to believe the
child is in "immediate danger of physical or sexual abuse." [FN11]
Officer Henderson testified that she believed the standard in
determining "whether children should be removed from their parents" was
in "exigent circumstances," and that, "in this particular case it
applied to sexual abuse, that [Crystal] had either been sexually abused
or at risk of being subjected to sexual abuse." TT at 111-112.
Henderson additionally stated that section 305 allowed for the
warrantless removal of a child, when there was "reasonable cause to
believe ... that she had suffered sexual abuse, and was at a
substantial risk to incur sexual abuse." TT at 114-115. Praegitzer
explained that he was concerned that Crystal was in imminent danger of
physical harm based on "allegations in the report" and "past
allegations of abuse." TT at 207-208. Finally, Officer Richard Leslie
testified that the policy regarding welfare checks for children only
referenced section 305. TT at 235, 247, 248.

FN10. The court notes that defendant Praegitzer testified that officers
were required to know both section 305 of the Welfare and Institutions
Code and section 279.6 of the Penal Code prior to removing a child. TT
at 229. Defendants also argued during oral argument that Penal Code
Section 279 is referred to in the Department's policies, which states
that "[o]fficers, you need to be familiar with these statutes." As the
court noted during oral argument, however, and as this order further
explains, there was little, if any, evidence that defendants operated
under the authority of Penal Code § 279.6.

FN11. Section 305 states in pertinent part: "Any peace officer may,
without a warrant, take into temporary custody a minor: (a) When the
officer has reasonable cause for believing that the minor is a person
described in Section 300, and, in addition, that the minor has an
immediate need for medical care, or the minor is in immediate danger of
physical or sexual abuse, or the physical environment or the fact that
the child is left unattended poses an immediate threat to the child's
health or safety."

*6 Although there was some testimony from defendants regarding Dennis
Keller's potential concealment of Crystal, a permissible ground for
removal under the penal code at issue, the evidence demonstrates that
it was not a realistic threat. Henderson testified that the concealment
of Crystal "could be an issue" because Crystal "was not found at the
preschool where she was supposed to be," and because Dennis Keller
"wasn't the custodial parent at the time as defined by court order." TT
at 101, 117, 129. Likewise, Takeda testified that Henderson was
concerned that they did not know where Crystal was, were unable to
contact Dennis Keller, and thought he was concealing Crystal from her
mother. TT at 181-182. Henderson, however, had no difficulty in finding
Crystal at her caretaker's house and both Henderson and Tekada
testified that they had no concerns about Crystal's physical condition
or the competency of her caretaker, Debra Morie ("Morie"), and that
Morie' s house was "in an appropriate condition for a child." TT at
125, 184. Henderson further testified that she was aware that another
Stockton police officer decided Dennis Keller should care for Crystal
while the allegations of sexual abuse against Crystal's mother were
being investigated. TT at 121. The investigation report notes taken by
Henderson also state that Crystal was taken into custody "due to the
fact that [Crytal's mother] was allegedly molesting Crystal and Dennis'
court visitation was not in effect." TT at 146:2-4. Such evidence
undermines defendants' present assertions that they were concerned
about Dennis Keller's intent to conceal his daughter when she was not
returned to her mother pursuant to the joint custody order. [FN12]

FN12. Nor was there any evidence that Mr. Keller's conduct fell within
the scope of the other provisions of section 279.6. There was a lawful
custodian available to take Crystal because it was Crystal's mother,
not Dennis Keller, who was being investigated for sexual abuse.
Finally, there were no conflicting custody orders or disagreement
between the parties regarding who should take the child.

Even though defendants assert in their reply brief and during oral
argument that the court's refusal to provide the instruction resulted
in error justifying a new trial, the evidence demonstrates that
defendants removed Crystal based on the standards set forth in the
Welfare and Institutions Code, not under the California Penal Code.
Indeed, "[a] trial judge is given substantial latitude in tailoring the
instructions so long as they fairly and adequately cover the issues
presented" when "evaluated in the context of the whole trial." United
States v. Marabelles, 724 F.2d 1374, 1382-83 (9th Cir.1984).. "A party
is entitled to an instruction about his or her theory of the case if it
is supported by law and has foundation in the evidence." Jones v.
Williams, 297 F.3d 930, 934 (9th Cir.2002). Here, however, providing
the penal code jury instruction was inappropriate since it has no
"foundation in the evidence" and there were no facts to support that
defendants were operating under the scope of Penal Code § 279.6.
[FN13] Consequently, defendants' argument that this instruction would
have either provided a defense or assisted the jury with assessing the
reprehensibility of defendants' conduct must be rejected.

FN13. The court assumes, without deciding, that the Penal Code
provision was consonant with the United States Constitution.

3. Jury Verdict Form

*7 Defendants further maintain that they are entitled to a new trial
because the jury verdict form was misleading and denied Praegitzer and
Henderson due process. Defs.' Mot. at 12. Assuming arguendo that the
verdict does not support a new trial, the verdict form explained that
if the jury found for the plaintiff "as to any one of the defendants"
it had to answer two questions:

What amount of compensatory damages do you award?

What amount, if any, of punitive damages do you award?

Special Verdict, filed March 31, 2006; Defs.' Mot. at 7.

Defendants assert that the verdict form did not make it clear that
punitive damages were only appropriate against Praegitzer and Henderson
as individuals, and that punitive damages could not be awarded against
the City. Defs.' Mot. at 8. As a result, defendants argue, the jury
believed that it could impose punitive damages against the city, not
the individual officers and, therefore, based the award on the City's
ability to pay. Defs.' Mot. at 12.

In support of their argument, defendants tender the declarations of
several jurors to demonstrate that the jury was confused and did not
understand who punitive damages could be awarded against. Defs.' Mot.
at 8, 13. These declarations are inadmissible under Rule 606(b) of the
Federal Rules of Evidence and will not be considered by the court.
[FN14] As the Ninth Circuit has held, "[a]fter a verdict is returned a
juror will not be heard to impeach the verdict when his testimony
concerns his misunderstanding of the court's instructions." United
States v. Stacey, 475 F.2d 1119, 1121 (9th Cir.1973). In addition, "it
is improper and unethical for lawyers to interview jurors to discover
what was the course of deliberation of a trial jury" and "neither a
trial court nor an appellate court has the authority to inquire into
the jury's decisional processes." Smith v. Cupp, 457 F.2d 1098, 1100
(9th Cir.1972). Only when there is an allegation of juror misconduct is
juror testimony admissible regarding "extraneous influences on the
deliberation process." Hard v. Burlington N. Railroad, 812 F.2d 482,
486 (9th Cir.1987); see also Economou v. Little, 850 F.Supp. 849, 852
(N.D.Cal.1994) ("The Ninth Circuit requires a post-verdict inquiry into
juror deliberations only if the court learns of a possible incident of
juror misconduct.").

FN14. Federal Rule of Evidence 606(b) states: "[u]pon an inquiry into
the validity of a verdict or indictment, a juror may not testify as to
any matter or statement occurring during the course of the jury's
deliberations or to the effect of anything upon that or any other
juror's mind or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or concerning the juror's mental
processes in connection therewith, except that a juror may testify on
the question whether extraneous prejudicial information was improperly
brought to the jury's attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may a juror's affidavit
or evidence of any statement by the juror concerning a matter about
which the juror would be precluded from testifying be received for
these purposes."

Moreover, any objection to the verdict form was arguably waived.
Defense counsel was given the form with the jury instructions but
failed to object when asked on the record. [FN15] Even if defendants
did not waive their objection, it is unlikely there was any juror
confusion due to counsels' arguments to the jury. Plaintiffs' counsel
explained during his opening argument that plaintiffs were "asking for
punitive damages against the officers." TT at 30. He reiterated this
point in his closing argument, stating that "[w]e've asked for punitive
damages against the two individual defendants." TT at 398. Plaintiffs'
counsel made explicit that "[t]hese damages are not available against
the City of Stockton for legal reasons." TT at 398.

FN15. Of course, had the defendants voiced any objection to the form,
it was readily modifiable to resolve any confusion. While the court has
no way of knowing whether defendants were "sandbagging," the present
record demonstrates the reason that objection must first be made to the
trial court for the objection to be preserved.

*8 Similarly, defense counsel clarified during their closing argument
that "[p]laintiffs are asking for punitive damages against Ken
Praegitzer and Kathryn Henderson." TT at 398. Any possibility of jury
confusion was mitigated by both plaintiffs' and defendants' counsel's
clarifications to the jury. Thus, any error committed by the court
through the jury verdict form was harmless error. Where a motion for a
new trial is based on allegations that the court committed error, the
error must be harmful to warrant a new trial. See Fed.R.Civ.P. 61. A
new trial is not justified if the error was harmless. Glanzman v.
Uniroyal, Inc., 892 F.2d 58, 61 (9th Cir.1989)("If an error does 'not
affect the substantial rights of the parties' it will be deemed
'harmless' and not grounds for reversal or appeal." This concept under
Rule 61 applies at trial and on appeal) (citation omitted). In the case
at bar, any error committed by the court was harmless. Defendants'
motion for a new trial based on the jury verdict form must be denied.

C. MOTION FOR REMITTITUR
Defendants urge the court to remit the compensatory and punitive
damages awarded to plaintiffs, contending that they are unsupported by
the evidence. The court considers defendants' contentions below.

1. Standards

Where an award of damages is grossly excessive or monstrous, clearly
not supported by the evidence, or only based on speculation or
guesswork, and gives rise to an inference that "passion and prejudice"
tainted the jury's finding of liability, a new trial may be in order.
Snyder v. Freight, Constr., Gen. Drivers, Warehousemen & Helpers, Local
No. 287, 175 F.3d 680, 689 (9th Cir.1999)(citing Los Angeles Memorial
Coliseum Comm'n v. National Football League, 791 F.2d 1356, 1360 (9th
Cir.1986); Seymour v. Summa Vista Cinema, Inc., 809 F.2d 1385, 1387
(9th Cir.1987)). However, where there is no evidence that passion and
prejudice affected the liability finding, remittitur of damages "which
the court considers justified" is an appropriate method of reducing an
excessive verdict. Snyder, 175 F.3d at 689; Seymour, 809 F.2d at 1387.
When the court, after viewing the evidence concerning damages in a
light most favorable to the prevailing party, determines that the
damages award is excessive, it has two alternatives: (1) it may grant
defendant's motion for a new trial; or (2) deny the motion conditional
upon the prevailing party accepting a remittitur. Fenner v. Dependable
Trucking Co., 716 F.2d 598, 603 (9th Cir.1983). The prevailing party is
given the option of either submitting to a new trial or of accepting a
reduced amount of damage which the court considers justified. Id. If
the prevailing party does not consent to the reduced amount, a new
trial must be granted. Id. The proper amount of a remittitur is the
maximum amount sustainable by the evidence. D & S Redi-Mix v. Sierra
Redi-Mix & Contracting Co., 692 F.2d 1245, 1249 (9th Cir.1982); see
also, 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil
2d § 2815 (stating the "maximum amount" theory of remittiturs "is the
only theory that has any reasonable claim of being consistent with the
Seventh Amendment).

2. Compensatory Damages

*9 In reviewing a jury's damages award, the court must uphold the
jury's "finding of the amount of damages unless the amount is 'grossly
excessive or monstrous,' clearly not supported by the evidence, or
'only based on speculation or guesswork.' " Handgards, Inc. v. Ethicon,
Inc., 743 F.2d 1282, 1297 (9th Cir.1984) (quoting Blanton v. Mobil Oil
Corp., 721 F.2d 1207, 1216 (9th Cir.1983), cert. denied, 471 U.S. 1007
(1985)), cert. denied, --- U.S. ----, 105 S.Ct. 963 (1985). In § 1983
cases such as the one at bar, damages are meant to compensate persons
for injuries that are caused by the deprivation of constitutional
rights. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986)
(citations omitted). Compensatory damages may include not only
out-of-pocket loss and other monetary harms, but also such injuries as
impairment of reputation, personal humiliation, and mental anguish and
suffering. Id.

Defendants contend that the jury's compensatory awards of $100,000 to
Dennis Keller and $500,000 to Crystal Keller were excessive and were so
high "as to shock the judicial conscience and constitute a denial of
justice." Defs.' Mot. at 9 (citations omitted). "[V]iewing the evidence
concerning damages in a light most favorable to the prevailing party,"
as the court must, Fenner, 716 F.2d at 603, the jury's compensatory
damages were supported by the evidence and not "grossly excessive or
monstrous." Los Angeles Memorial Coliseum Comm'n, 791 F.2d at 1360.

Defendants emphasize that the court limited Dennis Keller's
compensatory awards to five days, see Jury Instruction No. 28, filed
March 31, 2006, that he suffered "no physical injuries," and that "five
days of distraction ... cannot be worth $100,000." Defs.' Mot. at 9-10.
They make similar arguments with respect to Crystal Keller, explaining
that Crystal suffered "no physical harm," that her fear of officers is
due to other causes, and that she is now a well-adjusted child,
"performing well at school, has lots of friends and plays well with
others." [FN16] Defs.' Mot. at 10-11. Their attempts at minimizing the
injury and thus the compensatory damages the jury found for plaintiffs
are not successful. As noted above, compensatory damages for § 1983
cases may also include non-physical injuries such as impairment of
reputation, personal humiliation, and mental anguish and suffering. See
Memphis Cmty. Sch. Dist. v. Stachura, supra.

FN16. Defendants assert that Crystal's anxiety predated July 10, that
she has had only "two recurring nightmares," and that some of her
anxiety derives "from the time she witnessed her mother's arrest." Mot.
at 10.

As plaintiffs point out, the record is replete with testimony that
defendants' actions affected the bond between Crystal and Dennis Keller
and caused him mental anguish and emotional trauma. See, e.g., TT at
292 (Dennis Keller "couldn't concentrate" at work and in general, he
had planned her fifth birthday and felt he had "somehow failed [his]
daughter"); 257 (Dennis Keller "felt badly he couldn't protect her.").
The record also reflects that defendants' actions affected Crystal's
emotional well-being and her relationship with her father. See, e.g.,
TT at 54 (Crystal "worr[ie]s a lot ... about getting taken again ..."
and is "scared and terrified" that "[she] would never see [her] dad
again"); 55 (defendants' removal of Crystal affected her schoolwork and
concentration," and she is scared that police will "come and swipe
[her]."). Where, as here, the compensatory damages verdict for Dennis
and Crystal Keller finds substantial support in the record and lie
within the range sustainable by the proof, the court will not play
"Monday morning quarterback" and "supplant the jury's evaluation of the
complex and conflicting evidence with its own." Los Angeles Memorial
Coliseum Comm'n, 791 F.2d at 1366 (citations and internal quotations
omitted). Defendants' request to remit plaintiffs' compensatory damages
must be denied.

3. Punitive Damages

*10 The jury imposed $2 million in punitive damages against defendants
Praegitzer and Henderson, $1 million for each plaintiff. Defendants
contend that the jury's punitive damages are excessive and that it
furthers "no legitimate purpose and constitutes an arbitrary
deprivation of property." Defs.' Mot. at 13 (citation omitted).
Defendants urge the court to order plaintiffs to remit a substantial
portion of the punitive damages or face a new trial on punitive
damages. Defs.' Mot. at 18. Plaintiffs, on the other hand, contend that
the awards of punitive damages are not constitutionally excessive. The
court will not upset the jury's finding that Crystal Keller is entitled
to $1 million in punitive damages. The court concludes, however, that
the jury's award of $1 million for Dennis Keller is excessive.

Both parties correctly point out that BMW of North Am., Inc. v. Gore,
and State Farm Mut. Auto. Inc. Co. v. Campbell provide the standards
governing the court's determination of punitive damages. Punitive
damages can be imposed to further the interest of "punishing unlawful
conduct and deterring its repetition." BMW of North Am., Inc. v. Gore,
517 U.S. 559, 568 (1996); State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408, 416 (2003). But a punitive damages award that is "grossly
excessive" can be in violation of the Due Process Clause of the
Fourteenth Amendment. Gore, 517 U.S. at 568. A grossly excessive award
"furthers no legitimate purpose and constitutes an arbitrary
deprivation of property." Campbell, 538 U.S. at 417 (citing Pacific
Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 42 (O'Connor, J.,
dissenting)). They also violate "elementary notions of fairness" by not
providing a person with fair notice "of the severity of the penalty
that a State may impose." Campbell, 538 U.S. at 417.

Gore and Campbell provide three "guideposts" for determining whether a
punitive damages award is unconstitutionally excessive:

(1) the degree of reprehensibility of the defendant's misconduct; (2)
the disparity between the actual or potential harm suffered by the
plaintiff and the punitive damages awarded; and (3) the difference
between the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases.

Campbell, 538 U.S. at 418 (citing Gore, 517 U.S. at 575). The court
considers in turn these factors with respect to the instant case.

I. Reprehensibility
"The most important indicum of reasonableness of a punitive damages
award is the degree of reprehensibility of the defendant's conduct."
Gore, 517 U.S. at 575. The Court in Campbell instructed courts to
determine reprehensibility by considering whether the harm caused was
physical as opposed to economic; the tortious conduct evinced an
indifference to or a reckless disregard of the health or safety of
others; the target of the conduct had financial vulnerability; the
conduct involved repeated actions or was an isolated incident; and the
harm was the result of intentional malice, trickery, or deceit, or mere
accident.

*11 538 U.S. at 419 (citing Gore, 517 U.S. at 575); see also Bains LLC
v. ARCO Prods. Co., 405 F.3d 764, 775 (9th Cir.2005)(explaining
Campbell "enumerates the factors to be used when evaluating the
reprehensibility of a defendant's conduct").

The existence of one factor in favor of a plaintiff does not in itself
support a finding of reprehensibility and, ultimately, of a punitive
damages award. Campbell, 538 U.S. at 419; see also Planned Parenthood
of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists,
422 F.3d 949, 959-960 (9th Cir.2005) (finding defendant's conduct "on
the balance" was sufficiently reprehensible to warrant punitive
damages).

The Ninth Circuit has noted that neither Gore or Campbell addressed the
issue of reprehensible conduct by a public official. S. Union Co. v.
Southwest Gas Corp., 415 F.3d 1001, 1011 (9th Cir.2005). [FN17]
Nevertheless, given the facts of this particular case, the court finds
that defendants' conduct constituted sufficient reprehensibility to
warrant punitive damages.

FN17. In the context of discrimination claims under 42 U.S.C. § 1981,
given the public trust placed in officials, "[t] he redress of racial,
religious or gender discrimination has been treated as a special area
of public concern where affront to human rights may require high
punitives." Id. (citing Zhang v. American Gem Seafoods, Inc., 339 F.3d
1020, 1043 (9th Cir.2003), cert. denied, 541 U.S. 902 (2004)). By
analogy, cases brought under 42 U.S.C. § 1983 against public officials
and which deal with the parent-child relationship and the deprivation
of their civil rights may also be a "special area of public concern,"
especially where, as here, defendants repeatedly admitted that they
have never obtained a warrant to remove a child from his or her
parents. TT at 220, 229, 240.

The court firmly believes that the jury awarded punitive damages
because defendants' actions "evinced an indifference to or a reckless
disregard of the health or safety of others" and that the conduct at
issue most likely "involved repeated actions." In addition to the trial
testimony cited on pages 5-7 of this order, see supra, Richard Leslie,
a sergeant with the City of Stockton, testified that the Police Chief
Edward J. Chavez provided a written policy on the removal of children
from their home, which directs officers to interview the reporting
party, victim, parents or guardians, the suspect, other persons who can
contribute to the child or family, and paramedics/ambulance personnel
before removing a child. TT at 238. Henderson failed to follow this
department protocol and interviewed none of these individuals removing
Crystal. TT at 105, 107, 110.

Leslie also testified that he believed an "officer has a duty to
investigate surrounding circumstances to determine the reliability of
allegations" regarding sexual abuse against a parent. TT at 243. The
evidence at trial revealed that defendants failed to appropriately
investigate the circumstances before removing Crystal. Henderson
testified that she removed Crystal based on "information she had," on
"some allegations against Dennis Keller in Officer Alverson' s report
and based on CPS attachments," and that she did not independently
determine the reliability of such allegations. TT at 108-111. The
record also suggests that the reasons for removing Crystal were never
clear to defendants, much less made clear to plaintiffs. According to
Dennis Keller, Henderson stated to him on the phone at the time of his
daughter's removal that the removal was prompted by his "breaking [his]
court ordered visitation with the mother." TT at 291. Finally,
Henderson testified that the "decision to remove Crystal" was
ultimately made "at Debra Morie's house," suggesting that the decision
was not thoroughly contemplated. Indeed, the court concludes that a
jury could well conclude that the removal was an arbitrary exercise of
power. Put directly, a reasonable jury could conclude that defendants'
conduct constituted an unreasonable arrogation of power and that such
actions demonstrated an indifference to the health and safety of
plaintiffs. Multiple witnesses testified that plaintiffs were not made
aware of the removal in advance and that defendants did little to
ameliorate the difficult situation. Dennis Keller testified that he
spoke to Crystal when defendants were at Debra Morie's house and that
she "was begging me and crying and screaming not to let the police take
her," and that she was "totally afraid that [defendants] were going to
take her daddy away." TT at 290. Dennis Keller also testified that, as
noted above, "all [he] was told" was that the removal was due to his
"breaking [his] court ordered visitation with the mother," not that
defendants believed Crystal was in danger of sexual abuse, as
defendants testified to during trial. TT at 291. Debra Hamilton
testified that Debra Morie, Crystal's babysitter at the time of her
removal, was "hysterical," "screaming and crying into the phone" when
Crystal was removed, and that at the time, Dennis Keller "[d] idn' t
know what his rights were." TT at 256-257. Crystal Keller testified
that she "didn't know what was going on" when defendants came to remove
her, and that she was "scared and terrified" when Debra Morie told her
she needed to go with defendants. TT at 52.

*12 Finally, defendants testified that a warrant has "never" been
issued when the Stockton police department removed a child from his or
her home. Such a policy involves "repeated actions," rather than an
isolated incident. [FN18] Leslie testified that officers in Stockton
were not "trained to get warrants in these types of cases," and that in
his twenty-two years in the Department, defendants have "never"
obtained a warrant to remove a child from a home. [FN19] TT at 239-240.
Praegitzer similarly stated that he was not aware of any situation
where an officer obtained a warrant to remove a child. TT at 220. In
Praegitzer's experience, he had "never" obtained a warrant to remove a
child. TT at 229. Henderson testified that at the time of Crystal's
removal she "had no experience" with "any requirement that a police
officer obtain a warrant to remove a child from the parents [sic]
custody." TT at 113.

FN18. As explained above, Campbell instructed courts to determine
reprehensibility by considering whether, inter alia, the conduct
involved repeated actions or was an isolated incident. 538 U.S. at 419.

FN19. Significantly, when the court questioned Sergeant Leslie whether
his officers were trained "that the Fourteenth Amendment to the
Constitution of the United States bears upon the question of whether or
not a child may be removed from his ... or her parents," he jocularly
answered, "Do we know there is a Constitution?" TT at 249. It was not
until the court admonished Sergeant Leslie that the court did not ask
the question in jest that he responded that his officers were trained
with such knowledge. Such demeanor during trial, no doubt, supports the
jury's conclusion that defendants demonstrated an indifference or
reckless disregard for plaintiffs' rights in the removal of Crystal
Keller.

In sum, the record substantially supports that defendants' conduct was
sufficiently reprehensible, "the most important indicum of
reasonableness of a punitive damages award." Gore, 517 U.S. at 575.

ii. Ratio

The "most commonly cited" consideration of a punitive damages award is
"its ratio to the actual harm inflicted on the plaintiff." Gore, 517
U.S. at 580. Punitive damages must bear a "reasonable relationship" to
compensatory damages. Id. In the instant case, the punitive damages
award for Crystal Keller bears a reasonable relationship to the
compensatory damages awarded her. The punitive damages award for Dennis
Keller, however, fails to satisfy due process and must, indeed, be
remitted.

The Supreme Court has consistently refused to impose a "bright line
ratio." Campbell, 538 U.S. at 425. Despite the High Court's
unwillingness to establish any sort of calculable formula for lower
courts to determine what ratios would be unacceptably high, the Court
has explained that "single digit multipliers are more likely to comport
with due process," and that "in practice, few awards exceeding a
single-digit ratio between punitive and compensatory damages ... will
satisfy due process." Id. And when "compensatory damages are
substantial, then a lesser ratio, perhaps only equal to compensatory
damages, can reach the outermost limit of the due process guarantee."
Id.

In the case at bar, the jury awarded Crystal Keller $500,000 in
compensatory damages and $1,000,000 in punitive damages, a ratio of 2:1
overall, which is certainly within the Constitutional limits enunciated
by the Supreme Court. [FN20] The court finds that this factor favors
plaintiff Crystal Keller, and the court will not disturb the jury's
punitive damages award based on this consideration.

FN20. In Planned Parenthood of Columbia/Willamette Inc. v. American
Coalition of Life Activists, 422 F.3d 949, 962 (9th Cir.2005), the
Ninth Circuit held that the proper way to compute the ratio between
compensatory and punitive damages awards was to "compar[e] each
plaintiff's individual compensatory damages and punitive damages awards
as to each defendant." "The compensatory award to each plaintiff is the
denominator in the ratio for each defendant." Id. at 960, n. 6. See
Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1024-25
(9th Cir.1985) (basing denominator in ratio on the amount for which
each defendant is jointly and severally liable).

In the case at bar, because the jury verdict form did not specify the
amount for which each defendant is jointly and severally liable in
compensatory and punitive damages, the court concludes that $500,000 is
the amount for which defendants are jointly and severally liable to
Crystal Keller in compensatory damages and that $1,000,000 is the
amount for which defendants are jointly and severally liable in
punitive damages. In like manner, $100,000 is the amount for which
defendants are jointly and severally liable to Dennis Keller in
compensatory damages and $1,000,000 is the amount for which defendants
are liable to him in punitive damages. The damages ratio for Crystal
Keller is 2:1 based on this analysis, and the damages ratio for Dennis
Keller is 10:1.

The punitive damages ratio for Dennis Keller, however is 10:1 overall,
which fails Constitutional muster. As the court explained to the
parties during oral argument, the jury recognized the distinction
between the father's loss and injury and the child's loss and injury
when it awarded Crystal Keller $500,000 in compensatory damages and
$100,000 to Dennis Keller. That same judgment, however, was not
reflected in the punitive damages award. Even considering all the
inferences in favor of plaintiffs, it still appears to the court that
the punitive damages award for Dennis Keller is excessive.

*13 If this court determines that the evidence supported liability for
Dennis Keller, which this court does, but determines that the size of
the award is excessive, the Ninth Circuit has held that the court's
discretion is somewhat limited:

When the court, after viewing the evidence concerning damages in a
light most favorable to the prevailing party, determines that the
damages award is excessive, it has two alternatives. It may grant
defendant's motion for a new trial or deny the motion conditional upon
the prevailing party accepting an remittitur. The prevailing party is
given the option of either submitting to a new trial or of accepting a
reduced amount of damage which the court considers justified.

Fenner v. Dependable Trucking Co., 716 F.2d 598, 603 (9th
Cir.1983)(citing Linn v. United Plant Guard Workers, 383 U.S. 53, 65-
66(1966); see also 6A James Wm. Moore, et al., Moore's Federal Practice
59.08 [4] at 59:126-27 ("it may be appropriate, where the verdict is
excessive, to order a new trial unless the claimant remits a certain
sum"). The proper amount of remittitur is the maximum amount
sustainable by the evidence. D & S Redi-Mix v. Sierra Redi-Mix &
Contracting Co., 692 F.2d 1245, 1249 (9th Cir.1982).

Taking the evidence as a whole, the court deems $100,000 to be the
appropriate amount of punitive damages for Dennis Keller. If he accepts
the remittitur, the punitive damages for him will be reduced to
$100,000. If he does not accept the remittitur, a new trial will be
held limited to the question of a proper punitive damages award. [FN21]

FN21. The court notes that the third factor to be considered in
assessing the reasonableness of a punitive damages award is the
disparity between the punitive damages award and civil penalties
imposed in comparable cases. Campbell, 538 U.S. at 428 (citing Gore,
517 U.S. at 575). The court, however, has been unable to locate similar
cases where compensatory and punitive damages awards were imposed.
Defendants cite a number of police cases involving illegal strip
searches cases and police brutality, which the court finds to be
markedly different from the case at bar. Defs.' Mot. at 18. Plaintiffs
cite Franet v. County of Alameda Soc. Services Agency, CO2-3787MJJ
(N.D.Cal.2006)(Jenkins, J.), a case in the Northern District of
California involving the removal of children from the parents in
Alameda County. There, the jury returned a verdict of $1,220,000
against a social worker who removed two children from their mother.
Plaintiffs' reliance on Franet, however, is misplaced because the court
ultimately struck the jury's punitive damages award because plaintiffs
failed to tender evidence that defendant was motivated by evil intent
or reckless or callous indifference to plaintiff's rights.

III. CONCLUSION
Defendants' motion for remittitur is GRANTED IN PART, and DENIED IN
PART as consistent with the order. All other motions are DENIED.

IT IS SO ORDERED.

Slip Copy, 2006 WL 2051043 (E.D.Cal.)
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http://www.nkmr.org/english/english/million_dollar_award_for_children_kidnapped_
by_state.htm

2.6 million awarded for children kidnapped by STATE

This article was sent to the NCHR by our contact Will Gaston at "A
Voice for Children", Oregon, USA.

It is published here by special consent of Will Gaston.

A federal jury in Sacramento returned a verdict of $2.6 million on
Friday against two detectives and the City of Stockton following a
four-day trial. The eight member jury found that the detectives and the
City of Stockton violated the constitutional rights of a child, then
four years old, and her father when they took the child into protective
custody without a warrant.

The suit was brought by Crystal Keller and her father, Dennis Keller of
Fair Oaks.
After Crystal's parents separated, a court awarded them joint
custody. Crystal spent alternating weeks in each parent's home.

In July, 2002, Stockton police received a complaint that Crystal was
being abused in her mother's home in Stockton. Officer Ernie Alverson
responded to the complaint.
Concerned for Crystal's welfare, he told the father to keep Crystal
even though she was due to return to her mother. Alverson told Mr.
Keller that he would be contacted by the Stockton police department
family crimes unit.

Alverson's report was forwarded to Sergeant Ken Praegitzer who
assigned the case to Detective Kathryn Henderson. Two days later,
Henderson with Praegitzer's approval went to Sacramento with officer
Takada and removed Crystal from his day care provider, placing her in
protective custody just three days before her fifth birthday. It was
alleged that officer Takada threatened the day care provider with
arrest if she did not turn over Crystal.

In a report explaining why Crystal was removed, Detective Henderson
said that the father was in violation of the custody order by keeping
Crystal when the mother was supposed to have her. At trial, the Kellers
argued that Henderson was not enforcing the custody order when she took
Crystal away from both parents and that Henderson could have gotten an
emergency protective order to change custody while the allegations
against the mother were investigated.

The jury found that Crystal was not in danger of physical abuse and
that the officers violated the Kellers' rights by not getting a
warrant. The jury also ruled against the City of Stockton for not
having a policy to protect children from lawless seizures.

A statement from the father after the jury delivered its decision was
that it was with the support from friends and American Family Rights
Association that was of great help in understanding the system.

But when all was said and done, Mr. Keller hopes that this case will
set a precedence for the use of warrants to remove children, and to
train the Police officers how, when, and why they need to be used.

In a blistering forty five minute long final argument from David
Beauvais, the Stockton Police Department was described as being a bunch
of "lawless police." Judge Karlton implied that he would not reduce the
amount of the award, and he felt that whatever award that Dennis and
Crystal received, was fair and just.

The jury assessed punitive damages of $2 million against the detectives
saying they acted with deliberate indifference to the Kellers'
constitutional rights.

Soon there after, the skies opened up with rain, thunder, and
lightening as Shelly Green attorney for the police was seen walking
away in tears.

In 2004, a court awarded Dennis Keller full custody of his daughter.