Park v. Shiflett

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRENDA S. PARK; TONY D. PARK, 

Plaintiffs-Appellees,

v.  No. 00-1809

STEPHEN R. SHIFLETT; JEFF SIMMS,

Defendants-Appellants.



Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

B. Waugh Crigler, Magistrate Judge.

(CA-99-39-3)

Argued: January 23, 2001

Decided: May 17, 2001

Before WIDENER and TRAXLER, Circuit Judges, and

Malcolm J. HOWARD, United States District Judge for the

Eastern District of North Carolina, sitting by designation.

Affirmed in part and reversed in part by published opinion. Judge

Howard wrote the majority opinion, in which Judge Widener joined.

Judge Traxler wrote an opinion concurring in part and dissenting in

part.

COUNSEL

ARGUED: Anton Joseph Stelly, THOMPSON, SMITHERS, NEW-

MAN, WADE & CHILDRESS, Richmond, Virginia, for Appellants.

Thomas E. Albro, TREMBLAY & SMITH, L.L.P., Charlottesville,

2 PARK v. SHIFLETT

Virginia, for Appellees. ON BRIEF: Peter J. Caramanis, TREM-

BLAY & SMITH, L.L.P., Charlottesville, Virginia, for Appellees.

OPINION

HOWARD, District Judge:

Appellants Stephen R. Shiflett and Jeff Simms appeal the decision

of the magistrate judge awarding appellees Brenda S. Park and Tony

D. Park $450,000 and $50,000 respectively. We affirm in part and

reverse in part.

I.

Brenda and Tony Park were canning food in their home in Mineral,

Virginia, on November 22, 1998. They left their home between 10:30

p.m. and 11:00 p.m. to walk to the Mobil Mart to purchase canning

lids.

When the Parks arrived at the Mobil Mart, the store was suffi-

ciently lit to give the impression that someone was still working

inside. Mrs. Park pulled on the door which opened without the use of

excessive force. Mrs. Park proceeded to enter the store and, in doing

so, triggered the alarm. Mr. Park remained outside.

The 911 operator at the Louisa County Sheriff’s Department

received a call from ADT alerting her to the alarm activation at the

Mobil Mart. Shortly thereafter, Mrs. Park placed a 911 call to the

Louisa County Sheriff’s Department and informed the operator she

had opened the door and found no one inside and that an alarm had

been triggered. The Parks agreed to wait at the scene until law

enforcement officers arrived.

Louisa County Sheriff’s Deputies Stephen Shiflett and Jeff Simms

responded to the dispatcher’s call regarding the alarm activation.

They were aware that a woman had entered the store, triggered the

alarm, called 911, and was waiting at the scene. The deputies were

PARK v. SHIFLETT 3

never informed that the call was for any potential criminal offense,

i.e. breaking and entering.

The deputies asked the Parks a few questions, and the Parks pro-

vided the deputies with their names and address and related the events

that led to the 911 call. Deputy Shiflett inspected the store and found

nothing to indicate a forced entry. No merchandise appeared out of

place and nothing appeared to be missing. The only thing suspicious

was that a cash drawer, containing only loose change, was lying on

the floor in the office.

Because the Parks planned on only a brief trip to the store, they

mistakenly left the stove burner on under the canner. The Parks

became concerned about the potential fire hazard at their home, and

Mrs. Park entered the store to inquire as to why the deputies were tak-

ing so long. Mrs. Park was ordered to wait outside by Deputy Shiflett.

When the deputies emerged from the store, the Parks informed

them of their concern about the fire hazard at their home and asked

that at least one of them be allowed to go home and turn off the stove;

the deputies refused to let them leave. Mrs. Park decided to make

another 911 call to request that the fire department be sent to her

home to turn off the pressure cooker. During the call, Mr. Park,

against the orders of the officers, began to walk away to return home.

Deputy Simms grabbed Mr. Park and told him that he was being

detained until the owner of the store arrived, but that he was not under

arrest. He placed Mr. Park in handcuffs and directed him toward the

building. Deputy Shiflett then kicked Mr. Park’s legs apart and threw

him up against the building. At no time did Mr. Park physically resist

arrest, nor did he ever verbally or physically threaten the officers.

However, officer Simms testified that Mr. Park was not cooperative.

In the midst of her second 911 call, Mrs. Park turned around and

saw her husband pressed up against the front of the store and being

handcuffed. Mrs. Park claims that she ran toward her husband and

was grabbed by Deputy Shiflett. The officers claim that Mrs. Park ini-

tiated the contact by grabbing Deputy Shiftlett. It is undisputed, how-

ever, that Deputy Shiflett twisted Mrs. Park’s arm behind her back,

threw her up against the building, and handcuffed her. He sprayed her

4 PARK v. SHIFLETT

twice in the eyes with Oleoresin Capsicum ("OC") spray from close

range.1

The effects of OC spray include (1) dilation of the capillaries and

instant closing of the eyes through swelling of the eyelids, (2) imme-

diate respiratory inflammation, including uncontrollable coughing,

retching, shortness of breath and gasping for air with a gagging sensa-

tion in the throat, and (3) immediate burning sensations to the mucous

membranes, skin and inside the nose and mouth. Mrs. Park suffered

each of these effects.

Deputy Shiflett then transported Mrs. Park to the Louisa County

Sheriff’s Department. Upon arriving, Deputy Shifflet took Mrs. Park

inside, tripping and pushing her as she entered. He then threw Mrs.

Park into a cell. Later that evening Deputy Shiflett transported Mrs.

Park to the regional jail in Orange, Virginia. During this drive, Dep-

uty Shiflett manipulated the volume of the car radio "in a menacing

and harassing fashion."

It is not disputed that following the owner’s examination of the

store, nothing appeared amiss and no crime was committed. The

Parks were not charged with any crime and were released.

As a result of the incident, Mrs. Park claims that she suffers from

severe Post Traumatic Stress Disorder and will continue to do so in

the future. Mr. Park claims damages as a result of unlawful arrest,

including battery, humiliation and harassment.

1

The Louisa County Sheriff’s Department ("LSCD") Rules and Regu-

lations Manuel directs officers not to use OC spray at distances less than

three feet. In addition, after one application of spray, the deputy is

directed to wait and observe the effects of the spray to determine whether

another application is necessary. Mrs. Park was sprayed twice at a range

of approximately 18 inches, without the requisite delay between sprays.

The LCSD manual also provides guidelines to be followed after appli-

cation of OC spray. "Subjects who are sprayed with OC should be moni-

tored and verbally reassured that they are safe . . . . The subject(s), if wet

with OC should dry before transporting." The deputies in this matter

failed to reassure Mrs. Park, and poured water over Mrs. Park such that

the residue from the spray washed directly into her eyes.

PARK v. SHIFLETT 5

The district court, based on a long bench trial in front of a Magis-

trate Judge B. Waugh Crigler of the United States District Court for

the Western District of Virginia, at Charlottesville, in which the par-

ties testified to the events as they claim they occurred, awarded dam-

ages of $450,000 to Mrs. Park and $50,000 to Mr. Park respectively.

II.

The standard of review at issue here is primarily that as pertains to

the detention of the Parks by the deputies. Ultimate questions of rea-

sonable suspicion to make a warrantless seizure of a person involve

both questions of fact and law and are reviewed de novo on appeal,

though the appellate court is bound by the trial court’s findings of his-

torical facts leading up to the stop or search unless clearly erroneous

based on the evidence. See Ornelas v. United States, 517 U.S. 690-91,

699 (1996) (holding when mixed question of law and fact issue of

whether the historical facts, viewed from the standpoint of an objec-

tively reasonable police officer, amount to reasonable suspicion or to

probable cause is to be reviewed de novo to avoid unacceptably var-

ied results based on the interpretation of similar facts by different trial

judges). However, a reviewing court should take care both to review

findings of historical fact only for clear error and to give due weight

to inferences drawn therefrom by resident judges. Id. Therefore, it is

appropriate for this court to review the probable cause determinations

de novo, but should review the findings of fact and the credibility

determinations under a clearly erroneous standard. See United States

v. Gray, 137 F. 3d 765, 770 (4th Cir. 1998) (holding district court’s

factual findings in search and seizure context are reviewed on appeal

for clear error, however, whether given facts constitute probable

cause is a legal determination which is reviewed de novo).

III.

A.

"No right is held more sacred, or is more carefully guarded, by the

common law, than the right of every individual to the possession and

control of his own person, free from all restraint or interference of

others, unless by clear and unquestionable authority of law." Terry v.

Ohio, 392 U.S. 1 (1968) (quoting Union Pac. R. Co. v. Botsford, 141

6 PARK v. SHIFLETT

U.S. 250, 251 (1891)). It is from this sacred right that this case finds

its genesis.

Through the years of Fourth Amendment jurisprudence, courts

have attempted to strike a delicate balance between the needs of law

enforcement officers who constantly place themselves in harm’s way,

and the sacred rights described above.

The police can stop and detain a person for investigative purposes

"if the officer has a reasonable suspicion supported by articulable

facts that criminal activity may be afoot." United States v. Sokolow,

490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. at 20). In order

to justify a Terry seizure, "the police officer must be able to point to

specific and articulable facts which, taken together, with rational

inferences from those facts, reasonably warrant that intrusion." 392

U.S. at 21. Thus, the legitimacy of an investigative stop turns on what

constitutes "reasonable suspicion," which this court has called "a

common-sensical proposition . . . properly crediting the officers who

observe on a daily basis what transpires on the street." United States

v. Lender, 985 F. 2d 151, 154 (4th Cir. 1993). Because the intrusion

created by an investigative stop is minimal, the reasonable suspicion

standard is not onerous. See United States v. Harris, 29 F. 3d 1262,

1268-69 (4th Cir. 1994) (holding officer’s observation of man leaving

apartment in a vehicle after confidential informant advised drug deliv-

ery was imminent constitutes reasonable suspicion to stop); United

States v. Moore, 817 F. 2d 1105, 1007 (4th Cir.) (holding officer’s

nighttime observation of a man walking away from a deserted area

where burglar alarm had just gone off, constitutes reasonable suspi-

cion to stop man).

A Terry or investigative stop can cross the line and turn into an

arrest under certain circumstances. The test for determining whether

an individual is in custody or under arrest is whether, under the total-

ity of the circumstances, the "suspect’s freedom of action is curtailed

to a degree associated with formal arrest." Berkemer v. McCarty, 468

U.S. 420, 440 (1984) (holding in context of when suspect is under

arrest or in custody for purpose of Miranda warning).

A warrantless arrest is, however, permitted where there is probable

cause based on a subjective standard to believe a felony is being or

PARK v. SHIFLETT 7

has been committed by the arrested individual, based upon the totality

of the circumstances. Illinois v. Gates, 462 U.S. 213, 230-31 (1983).

As the Supreme Court explained in Gates, "probable cause is a fluid

concept — turning on the probabilities in particular factual contexts

— not readily or even usefully, reduced to a neat set of legal rules."

Id. at 232. This court has articulated the probable cause standard as

"facts and circumstances within the officer’s knowledge [which]

would warrant the belief of a prudent person that the arrestee had

committed or was committing an offense." United States v. Manbeck,

744 F. 2d 360, 376 (4th Cir. 1984).

B. Tony D. Park

Thus, based on the claims of Mr. Park the court first must deter-

mine whether he was in fact arrested or just simply detained under the

law. Second, the court must determine whether the arrest was lawful.

Third, it must be determined whether Tony Park was the victim of

assault, battery and false imprisonment.

1. Detention v. Arrest

The deputies list the following factors as giving rise to reasonable

suspicion in this case: (1) the report of an alarm from the dispatcher,

(2) the lack of lighting in the store, (3) Mrs. Park being intoxicated

and, (4) the cash drawer being on the floor. The court must evaluate

the combined strength of these factors in determining whether or not

there was reasonable suspicion to detain Mr. Park. See United States

v. Sokolow, 490 U.S. 1, 8-10 (1989).

The trial judge determined that the store was well lit and that Mrs.

Park was not intoxicated. These are historical facts and therefore

should be reviewed for clear error. See Ornelas v. United States, 517

U.S. 690-91, 699 (1996). Furthermore, based on findings of the trial

court, the officers were aware that a woman had entered the store,

triggered the alarm, called 911, and was waiting at the scene. The

deputies were never informed that the call was for any potential crim-

inal offense, i.e. breaking and entering. The trial judge also deter-

mined that the officers were familiar with the Parks and knew that

they lived within walking distance of the scene of the incident.

8 PARK v. SHIFLETT

However, even based on the findings of the trial court, regardless

of what the officers knew when they arrived on the scene, they

arrived to find the Parks, who had triggered the alarm, waiting for

them in front of a deserted convenience store in which the tray to the

cash register was misplaced.

It is true that the intrusion created by an investigative stop is mini-

mal, and that therefore the reasonable suspicion standard is not oner-

ous. See United States v. Moore, 817 F. 2d 1105, 1107 (4th Cir.)

(holding officer’s nighttime observation of man walking away from

otherwise deserted area where burglar alarm had just gone off consti-

tutes reasonable suspicion to stop man). However, this court has held

that "reasonable suspicion" must include "particularized evidence that

. . . criminal activity is afoot." United States v. Sprinkle, 106 F. 3d.

613, 618-19 (4th Cir. 1997). The bottom line under a reasonable sus-

picion analysis is that the court must consider the totality of the cir-

cumstances — the whole picture — in deciding whether officers had

reasonable suspicion of criminal activity so as to justify an investiga-

tive stop.

It is a close call as to whether or not the officers had reasonable

suspicion to stop and detain Mr. Park. However, the court need not

decide this issue as the court concludes that Mr. Parks was not simply

detained but was arrested.

It is the finding of this court that Mr. Park’s freedom was curtailed

to a degree associated with formal arrest. Berkemer v. McCarty, 468

U.S. 420, 440 (1984).2 Even notwithstanding the fact that the deputies

specifically told Mr. Park that he could not leave, it is inconceivable,

based on the facts as determined by the trial court, that Mr. Park

would have felt free to leave after being thrown against the wall,

kicked, handcuffed and locked in the patrol car.

2

The Lousia County Sheriff’s Department Rules and Regulations Man-

ual states, "The test, in interviews or stops of persons, for whether an

arrest has occurred . . . is whether a reasonable person under the circum-

stances would have felt free to leave."

PARK v. SHIFLETT 9

2. Wrongful Arrest

As discussed above, this court has articulated the probable cause

standard as "facts and circumstances within the officer’s knowledge

[which] would warrant the belief of a prudent person that the arrestee

had committed or was committing an offense." United States v. Man-

beck, 744 F.2d 360, 376 (4th Cir. 1984).

The officers assert that they had probable cause to arrest. However,

this assertion flies in the face of the factual findings of the trial court

which are to be reviewed for clear error in this matter. See United

States v. Gray, 137 F.3d 765, 770 (4th Cir. 1998). The trial judge

found that while Mr. Park did indeed begin to walk toward his home

once he realized the potential for a fire, the brute force that the offi-

cers used to detain Mr. Parks combined with the fact that he was

handcuffed and locked in the patrol car gives this court reason to

doubt the officers’ assertion that Mr. Park was free to leave despite

the fact that Mr. Park was told that he was not under arrest. Therefore,

based on the totality of the circumstances — the historical findings of

fact of the trial court — the evidence reveals that Mr. Park was

arrested without probable cause, and therefore, the trial court was cor-

rect in determining that Mr. Park was wrongfully arrested.

3. Battery, Assault and False Imprisonment

Under Virginia law, the slightest touching of another, or of his

clothes, or cane, or anything else attached to his person, if done in a

rude, insolent or angry manner constitutes a battery. Crosswhite v.

Barnes, 139 Va. 471, 124 S.E. 242, 243 (Va.App. 1924). Based on the

findings of fact by the trial court, Mr. Park was wrongfully arrested,

and in the course of this illegal arrest, he was thrown up against a

wall, his legs were kicked apart, and he was handcuffed. This consti-

tutes the unlawful touching associated with a battery.

The common law tort definition of "assault" is an intentional offer

to touch the person of another that created in the mind of the victim

a reasonable apprehension of an immediate battery. See e.g. Epps v.

Commonwealth of Virginia, 28 Va.App. 58, 502 S.E.2d 140 (Va.App.

1998). Based on the extensive findings of the trial court, it is appro-

10 PARK v. SHIFLETT

priate to conclude that Mr. Park suffered an assault at the hands of the

officers.

Under Virginia law, "false imprisonment" is restraint of one’s lib-

erty without sufficient legal excuse. Montogomery Ward & Company

v. Wickline, 188 Va. 485, 50 S.E. 2d 387 (Va.App. 1948). It is clear

from the record that Mr. Park’s liberty was so restrained.

C. Brenda S. Park

Brenda Park contends that the use of force by the officers in

restraining her was excessive. Based on the findings of the trial court

contained in the facts set forth above, the irresponsible use of pepper

spray twice from close range on the unarmed Mrs. Park was indeed

excessive. An analysis of excessive force, "requires careful attention

to the facts and circumstances of each particular case, including the

severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight." Graham v.

Connor, 490 U.S. 386, 398 (1989). It is difficult to imagine the

unarmed Mrs. Park as a threat to the officers or the public.

D. Qualified Immunity

"A police officer should prevail on an assertion of qualified immu-

nity if a reasonable officer possessing the same information could

have believed that his conduct was lawful." Slattery v. Rizzo, 939 F.2d

213, 216 (4th Cir. 1991) (quoting Tennessee v. Garner, 471 U.S. 1,

11 (1985)); see also McLenagan v. Karnes, 27 F.3d 1002, 1007 (4th

Cir. 1994) (stating that regardless of whether probable cause actually

exited, officer is entitled to qualified immunity if the officer "could

have . . . believed that his conduct was lawful"). The determination

of whether qualified immunity exists is ultimately a question for the

court. The standard used for determining qualified immunity is an

"objectively reasonable" standard. The court does not look to the sub-

jective intent of the officer in granting qualified immunity.

The calculus of reasonableness must embody allowances for the

fact that police officers are often forced to make split-second judge-

PARK v. SHIFLETT 11

ments — in circumstances that are tense, uncertain and rapidly evolv-

ing — about the amount of force that is necessary in a particular

situation. Sigman v. Chapel Hill, 161 F. 3d 782 (4th Cir. 1998). As

the trial court judge explained in his opinion, "Such a determination

requires me to balance the nature and the quality of the intrusion on

the plaintiffs’ Fourth Amendment interests against the importance of

the governmental interests alleged by the instant intrusion. The out-

come of that test depends on all of the circumstances of the case as

they existed at the time of the incident from the perspective of a rea-

sonable police officer, not with 20/20 hindsight at the time of this

trial."

When the trial judge did this balancing, after listening to extensive

testimony from all the parties, he determined that the force used by

the officers was unreasonable and excessive. The questions that

should be asked are whether or not reasonable police officers, acting

under the same or similar circumstances, would have twice, from

close range, sprayed Mrs. Park with OC, and would they have hand-

cuffed and arrested the Parks after throwing them against the wall and

on the ground? This court does not think so.

E. Damages

The magistrate judge awarded damages of $50,000 to Mr. Park and

$450,000 to Mrs. Park. The defendants-appellants contend that the

judge erred in awarding such damages. Only compensatory damages

are appropriate in this matter, as the plaintiffs did not ask the court

to assess any punitive damages. Therefore, the question is whether or

not the damages awarded were excessive compensation for the Parks’

damages.

As defendants-appellants contend, there is no evidence in the

record to sustain a damage award for Mr. Park. There was no evi-

dence of physical injury suffered by Mr. Park and the general rule is

that the plaintiff must not only show legal injury, but also a percepti-

ble resultant damage with reasonable certainty. See generally Burns

v. Hines, 94 Va. 413, 28 S.E. 875 (1897); Diggs v. Lail, 201 Va. 871,

114 S.E. 2d 743 (1960). The $50,000 awarded looks like an award of

punitive damages, and it is clear from the law and the record that such

an award is inappropriate in this case. However, in a case in which

12 PARK v. SHIFLETT

a plaintiff’s civil rights are found to have been violated, it is appropri-

ate to award nominal damages. Carey v. Piphus, 435 U.S. 247, 265

(1978); Norwood v. Bain, 166 F.3d 243, 254 (4th Cir. 1999). A plain-

tiff’s failure to prove compensatory damages results in nominal dam-

ages, typically one dollar. Price v. City of Charlotte N.C., 93 F.3d

1241, 1246 (4th Cir. 1996). The rationale for the award of nominal

damages being that federal courts should provide some marginal vin-

dication for a constitutional violation. Id. at 1246. Therefore, it is the

finding of this court that nominal damages of one dollar are appropri-

ate for Mr. Park.

Based on the record, however, Mrs. Park suffered severe and costly

injuries. On review of the record, it is clear that Mrs. Park suffered

out-of-pocket expenses of approximately $7,500. As the trial judge

held, there is no question that for some period of time she is going

to incur medical expenses. The trial judge found that Mrs. Parks’

medication currently costs $427 per month alone, not counting treat-

ment. This finding is based on what the judge considered to be the

credible determinations of reliable medical personnel and other

healthcare experts. According to this finding, Mrs. Park will incur

medical costs of up to approximately $300,000 in the future based on

past and present calculations. Therefore, Mrs. Park should be entitled

to compensatory damages of $300,000 to compensate her for the

expenses incurred.

F. Attorney’s Fees Appropriate

Based on the trial judge’s thorough review of this matter, the costs

and fees should be upheld.

IV.

"[N]othing can so militate against the effective administration of

justice and the proper regard for the law of the land as unlawful and

reckless conduct on the part of officers who are charged with its

enforcement." Crosswhite v. Barnes, 139 Va. 471, 124 S.E. 242

(Va.App. 1924) (quoting Bourne v. Richardson, 133 Va. 441, 113

S.E. 893 (Va.App. 1922)). Therefore, it is the finding of this court that

Mrs. Park is entitled to $300,000 and Mr. Park is entitled to nominal

PARK v. SHIFLETT 13

damages of one dollar. The trial court is affirmed as to liability and

reversed as to damages.

AFFIRMED IN PART AND REVERSED IN PART

TRAXLER, Circuit Judge, concurring in part and dissenting in part:

I agree that Officers Shiflett and Simms violated Mr. Park’s Fourth

Amendment right to be free from an unreasonable seizure, and that

Officer Shiflett used excessive force in effectuating his arrest of Mrs.

Park.* I also agree that the officers are not entitled to qualified immu-

nity. Consequently, I concur in the majority’s decision to affirm the

judgment of liability on the Parks’ claims, as well as the award of

attorneys’ fees and costs.

I respectfully dissent, however, from the conclusion that the dam-

ages awarded to Mr. and Mrs. Park were excessive as a matter of law.

In my view, the majority has, in contravention of the proper standard

of review, substituted its judgment for that of the trial judge as to

what is a fair verdict in this case.

I.

I begin with the standard of review applicable to the magistrate

judge’s assessment of damages. Historically, we have reviewed an

award of compensatory damages imposed by a jury to redress a viola-

tion of a federal right only to determine whether the award "is so

untoward, inordinate, unreasonable or outrageous as to be a denial of

justice to allow it to stand." Sevigny v. Dicksey, 846 F.2d 953, 959

(4th Cir. 1988) (internal quotation marks omitted). The Eighth Cir-

cuit, at least, would apply the same standard where a judge assesses

damages for such a claim in the course of a bench trial:

*I note, however, that the record reveals that Mrs. Park was indeed

charged by Deputy Shifflett with disorderly conduct, obstruction of a law

enforcement officer in the performance of his duties, and public drunken-

ness. And, she was held overnight in jail. The charges were eventually

nolle prossed by the Commonwealth’s attorney and dismissed.

14 PARK v. SHIFLETT

Because "inadequacy . . . of the verdict is basically, and

should be, a matter for the trial court which has had the ben-

efit of hearing the testimony and of observing the demeanor

of the witnesses and which knows the community and its

standards," Solomon Dehydrating Co. v. Guyton, 294 F.2d

439, 447 (8th Cir. 1961), we must defer to the district

court’s assessment of damages unless there is "‘plain injus-

tice’ or a ‘monstrous’ or ‘shocking’ result." Id. at 448. As

a result, we review the district court’s determination of the

damage award for abuse of discretion.

St. John v. United States, 240 F.3d 671, 678 (8th Cir. 2001).

I too believe that our review for excessiveness should be the same

whether damages are assessed by a jury or a judge, and that our

Sevigny standard would be an appropriate one to apply. At a mini-

mum, however, we have recognized that "[t]he trial court, as a fact-

finder, possesses considerable discretion in fixing damages, and its

decision will be upheld absent clear error." Little Beaver Enters. v.

Humphreys Rys., 719 F.2d 75, 79 (4th Cir. 1983); see also United

States ex rel. Maddux Supply Co. v. St. Paul Fire & Marine Ins. Co.,

86 F.3d 332 (4th Cir. 1996) ("The calculation of damages is a finding

of fact and therefore is reviewable only for clear error, but to the

extent those calculations were influenced by legal error, review is de

novo."); Scott v. Vandiver, 476 F.2d 238, 243 (4th Cir. 1973)

("Ascertainment of damages arising from personal injuries involves

questions that are essentially factual, and an award by a district judge

will not be upset unless it is clearly erroneous."). "A finding is clearly

erroneous when, although there is evidence to support it, on the entire

evidence the reviewing court is left with the definite and firm convic-

tion that a mistake has been committed." Front Royal v. Town of

Front Royal, 135 F.3d 275, 284 (4th Cir. 1998) (quoting Faulconer

v. Commissioner, 748 F.2d 890, 895 (4th Cir. 1984)); see Fed. R. Civ.

P. 52(a) ("Findings of fact . . . shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of the trial

court to judge of the credibility of the witnesses").

Having reviewed the magistrate judge’s findings underlying the

damages award to Mr. and Mrs. Park and the evidence supporting

those findings, I am satisfied that the magistrate judge’s findings are

PARK v. SHIFLETT 15

not clearly erroneous and that, given the egregious nature of the viola-

tions and the physical and mental injuries inflicted, the damages

awarded are not excessive as a matter of law.

II.

A.

I begin with the award of compensatory damages to Mrs. Park in

the amount of $450,000. To be sure, this award is not insubstantial,

but neither was the egregious treatment she received nor the injuries

she sustained at the hands of Officer Shiflett.

According to the evidence found credible by the magistrate judge,

Officer Shiflett grabbed Mrs. Park that evening by the arm, twisted

her arm behind her back, threw her against the building, sprayed her

twice in the eyes with pepper spray at close range (in contravention

of the department rules and regulations governing the use of pepper

spray and once after pulling away her glasses), haphazardly dumped

water over her head in a futile effort to wash away the effects, and

then placed her in the confined space of the patrol car in handcuffs

where she suffered from additional pain and shortness of breath

caused by the spray. During the struggle, she was also pushed to the

ground hard enough to "knock her silly."

After she was released from jail, Mrs. Park was examined by her

family physician. In addition to finding Mrs. Park to be upset and

withdrawn, the physician noted that Mrs. Park had sustained numer-

ous physical injuries (many confirmed by photographs), including a

contusion to her head, swelling over the left eye and cheek, large

bruises on her hands, swelling at the base of her fingers on her right

hand, incipient bruises on the back and side of her forearm, a "grab

injury" on the right upper arm, and abrasions to both knees. Her eyes

were blood-shot, with a yellowish tinge. Her right hand was splinted

and she was referred to orthopedics. The following day, Mrs. Park

called her physician, still very upset and agitated, and was prescribed

Valium.

A week later, Mrs. Park was reevaluated by her family physician.

At that time, she was found to be suffering from headaches and con-

16 PARK v. SHIFLETT

tinued irritation of the lateral side of the left eye. Both hands were

sore and she was having pain in the lower back and hip. In addition,

she continued to have psychological effects from the incident, includ-

ing difficulty sleeping, nightmares, and severe panic attacks. She was

eventually diagnosed with moderate to severe Post Traumatic Stress

Disorder (PTSD) and referred to a psychiatrist and psychologist for

further treatment, which was continuing at the time of trial.

Based upon this and other unrefuted evidence, the magistrate judge

found that Mrs. Park suffers from PTSD as a result of Officer

Shiflett’s actions. At the time of trial, Mrs. Park had sustained approx-

imately $7,800 in out-of-pocket expenses and was expected to incur

between $200,000 and $300,000 in future medical expenses — thus

establishing virtually uncontested compensatory damages of over

$250,000 solely for past and future medical expenses associated with

her physical and mental injuries.

I am unprepared to conclude, as a matter of law, that the additional

$200,000 in compensatory damages which the magistrate judge

awarded was excessive, or that the findings supporting the award

were clearly erroneous. Cf. Goodwin v. Metts, 885 F.2d 157, 164-65

(4th Cir. 1989) (holding that compensatory damage awards of

$65,000 and $90,000 were not excessive despite the fact that plaintiffs

only proved $3,500 in out-of-pocket expenses: "We will not disturb

the district court’s discretionary ruling merely because the compensa-

tory award considerably exceeded [plaintiffs’] out-of-pocket losses"),

overruled in part by Albright v. Oliver, 510 U.S. 266 (1994); Sevigny,

846 F.2d at 959 (holding that an award of $112,000 in compensatory

damages for violation of plaintiff’s Fourth Amendment rights was not

excessive even though plaintiff only proved $3,680 in special dam-

ages because "[t]here was also substantial evidence . . . from which

the jury could, and presumably did, find that [she] suffered extreme

emotional distress"); Spell v. McDaniel, 824 F.2d 1380, 1400 (4th Cir.

1987) (holding that a compensatory damage award of $900,000 was

not excessive, even though the medical expenses for physical injuries

were only $2,041).

Mrs. Park’s damages are clearly not limited to her out-of-pocket

expenses, nor to the medical costs that she is projected to incur in the

future. Rather, Mrs. Park sustained significant, visible physical inju-

PARK v. SHIFLETT 17

ries as a direct result of the excessive force brought to bear upon her

that night, considerable pain and suffering during her physical recu-

peration, and severe emotional injuries, including humiliation, mental

anguish, emotional trauma, and nightmares. These injuries were docu-

mented by her treating physicians and therapists, and the magistrate

judge personally questioned the witnesses regarding them to ensure

their validity. Defendants have pointed to no authority which would

limit Mrs. Park’s recovery of compensatory damages to her out-of-

pocket and expected future medical costs, and I am aware of none. Cf.

Jenkins v. Averett, 424 F.2d 1228, 1233 (4th Cir. 1970) (reversing and

remanding district court’s award of compensatory damages for viola-

tion of plaintiff’s civil rights as inadequate because the court limited

plaintiff’s recovery to his out-of-pocket expenses and took no account

of, among other things, the plaintiff’s pain and suffering).

B.

I likewise believe that the magistrate judge’s compensatory award

of $50,000 to Mr. Park is supported by findings which are not clearly

erroneous.

Unlike Mrs. Park, Mr. Park sustained only minor physical injuries

associated with his detention and unlawful arrest when Officer

Shiflett pressed his face against the wall and kicked his feet out. How-

ever, the magistrate judge reasonably found that Mr. Park had also

suffered considerable indignity, embarrassment, and humiliation asso-

ciated with the treatment he received, all while he was forced to wit-

ness helplessly the physical assault inflicted upon his wife by an out-

of-control police officer.

Because the majority believes there was no such evidence of dam-

ages, it surmises that the magistrate judge’s award was really punitive

in nature and eliminates Mr. Park’s compensatory award in its

entirety. While I agree that an award of punitive damages would have

been inappropriate because they were not pursued by the plaintiffs

(indeed, the magistrate judge noted as much), I find no basis in the

record to support a conclusion that the magistrate judge abandoned

his duty and awarded punitive damages under the guise of "compen-

satory damages." In my view, the magistrate judge’s findings regard-

ing the damages sustained by Mr. Park are not clearly erroneous and

18 PARK v. SHIFLETT

his assessment of damages not excessive for the physical and emo-

tional injuries he sustained.

III.

To summarize, I believe it is error for this court to arbitrarily sub-

stitute its view of an appropriate amount of damages for that ascer-

tained and awarded by a magistrate judge in a nonjury trial who,

unlike us, has had the benefit of hearing the testimony and observing

the demeanor of the witnesses. Because the findings supporting the

award of compensatory damages to Mr. and Mrs. Park are not clearly

erroneous and the amounts not excessive as a matter of law, I would

affirm all aspects of the magistrate judge’s decision.