# Petition — Argento v. Lenard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0793%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 815 ## Text | Office-Suoreme Court. us. | Be-i60e te Bs So seicena te APR 14 i953 | — { ALEXANDER L STFVAS. IN THE oe | Supreme Court of the United States October Term, 1982 ROBERT ARGENTO and JOSEPH SANSONE, Petitioners, BENNIE LENARD, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT _——— Eee ———————— === JOHN G. POUST, Counsel of Record STEPHEN E. SWARD CHRISTINE M. WHEELOCK Xerox Centre, Suite 1500 55 West Monroe Street Chicago, Illinois 60603 (312) 372-5600 Rooks, PITTS, FULLAGAR AND POUST Attorneys for Petitioners IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 ROBERT ARGENTO and JOSEPH SANSONE, Petitioners, Vv. BENNIE LENARD, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Pursuant to the provisions of 28 U.S.C. 2101(c) and Supreme Court Rule Il], petitioners pray that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Seventh Circuit entered in this proceeding on February l, 1983+, Ithe Plaintiff in the proceeding below is Bennie Lenard. The defendants are the Village of Melrose Park, Robert Argento, Joseph Sansone, George Zito and Bruce Culotta. -ii- QUESTIONS PRESENTED l. Whether a civil conspiracy under 42 U.S.C. §1985(3) can be found in the absence of a finding of an overt act in furtherance of the alleged conspiracy. 2. Whether given a finding of a civil conspiracy under 42 U.S.C §1985(3) alleged conspirators can be held liable for dam- ages not shown to be the result of acts performed in furtherance of the con- Spiracy. 3. Whether arresting officers are liable for any and all injuries and/or deprivation of constitutional rights allegedly sustained by a prisoner while in police custody, regardless of the lawful- ness of the arrest or the officers' causa- tion of said injuries or deprivations of constitutional rights. -ilii- 4. Whether a plaintiff is entitled to attorney's fees and costs as to an appeal which was (a) necessitated by errors made by the District Court requiring reversal of judgment entered on two counts; (b) affirmance of one count in favor of peti- tioner; and (c) remandment of one count for retrial in which damages were awarded pursuant to grossly erroneous jury in- structions on damages as a result of which the said remaining count damages were er- roneously and excessively awarded. -iv- TABLE OF CONTENTS QUESTIONS PRESENTED . .... .» TABLE OF CONTENTS . ... « « « TABLE OF AUTHORITIES ..... OPINIONS BELOW .... ss «» JURISDICTION . 2. «6 « «© «© © © « CONSTITUTIONAL PROVISION, STATUTES AND RULES INVOLVED . STATEMENT OF THE CASE .... .« REASONS FOR GRANTING THE WRIT . I. IN CONTRAVENTION OF THE DECISIONS OF THIS COURT AND OTHER COURTS OF APPEALS, THE DECISION BELOW PERMITS RECOVERY UNDER 42 U.S.C. §1985(3) WHERE THE JURY FOUND NO OVERT ACT AND NO EVIDENCE EXISTS TO CONNECT THESE DEFENDANTS WITH ANY OTHER WRONGFUL CONDUCT DIRECTED TOWARD THE PLAINTIFF . . . «2 « « « a2 13 PAGE II. ATTORNEY'S FEES AND COSTS WERE IMPROPERLY AWARDED FOR THIS APPEAL... . 36 CONCLUS ION . . . . 7 7. . . . 7 . . 4 3 APPENDIX A - Opinion Below .... la APPENDIX B - Mandate, Order Denying Petition for Rehearing, Order Staying Issuance of Mandate . om . . . . . 7 . . 7 . . . lb APPENDIX C = District Court's Orders Entering Judgment on Verdicts and Awarding Fees .... le APPENDIX D - Jury Verdicts on Liability and Damages .... . ld APPENDIX E = Text of Constitutional Provisions, Statutes and Rule Involved .... le vi TABLE OF AUTHORITIES Cases Armstrong v. Borie, 494 F.Supp. -D. a. 80) . - 7 a . Benson v. ALeppine 544 F.Supp. . . . 1982) . . - . Blackwelder v. Millman, 522 F.2d 766 (4th Cir. 1975) .. cacy v. Piphus, 435 U.S. 249 Clapper v Flynn, 605 F.2d 519 Be 79) . . . . . . Collins v. Hardyman, 341 U.S. Corriz v. Naranjo, 667 F.2d t r. 1981) . . . Flentie v. American Com- muity BEOESO, SED. 369 F.2d re. 8) . . . . . Griffin v. Breckenridge, 403 Heslip v. Lobbs, 554 F.Supp. . »AL - 1982) . . - - . Newman v. Piggie Park Enter- betees, Inc., 390 U.S. 400 vii Page es . 36 . . 30 — - we 29,34 . & . & aa » 40 Page Sandford v. R.I. Coleman pealty Sombany Inc., 5)3 1978) . . . . . . *. . ° * *. . . 34 Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963) . . * . . . *. . . . . . . 29 United Mine Workers of America v. Gibbs, 383 U.S. . . . . . . . . . * 16 Constitutional Provisions Le) Fourteenth Amendment ....s.-. Statutes >nLD NNN ccc NNW aan Aan ee ve) © ui S EE n = 3 Rules Circuit Rule 18 of the Court of Appeals for the Seventh Circuit Ss 6.6 8 & Se & 1l-13, 4l, 44 viii OPINIONS BELOW The opinion of the Court of Appeals is published at 699 F.2d 874, and is set forth in Appendix A hereto. The mandate of the Court of Appeals, order denying petition for rehearing, and order staying issuance of mandate, are set forth in Exhibit B hereto. The pertinent judgments of the District Court are set forth in Appendix C. The jury verdicts are set forth in Appendix D. JURISDICTION The judgment and opinion of the Court of Appeals was entered on February 1, 1983. A Petition for Rehearing was filed on Feb- ruary 18, 1983 and denied on March 10, 1983. This Court's jurisdiction is in- voked under 28 U.S.C. §§1254(1), 2101(c) and Rule 17 of this Court. CONSTITUTIONAL PROVISIONS, STATUTES AND RULE INVOLVED This case involves the Fourteenth Amendment; the Civil Rights Act of 1871, as amended, and in particular 42 U.S.C. §§1983, 1985 and 1988; and Rule 18 of the Rules of the Court of Appeals for the Seventh Circuit, the texts of which are set forth in Appendix E. STATEMENT OF THE CASE Lenard initiated this action in a five-count complaint pursuant to several sections of the Civil Rights Act of 1871, 42 U.S.C. §§1983, 1985 and 1988. Juris- diction was based on the Eighth, Thir- teenth and Fourteenth Amendments to the Constitution and on 28 U.S.C. §1331 and 1343. The named defendants included the Village of Melrose Park, Robert Argento, Joseph Sansone, Bruce Culotta, George Zito, (Village police officers), Andrea Dreyer, Dr. T. Mehrpuyan and Westlake Com- ~ munity Hospital. Westlake Hosital and Dr. Mehrpuyan reached a settlement with Lenard and they, along with Count IV of the Com- plaint, were dismissed from the suit. Andrea Dreyer was defaulted. Count I of the Second Amended Complaint charged Police Officers Argento, Sansone and Culotta and Zito with violating 42 U.S.C. §1983 by beating Lenard. Count II charged these same officers with conspiracy to deprive equal protection of the law by use of brutal and excessive force on Lenard in violation of 42 U.S.C. §1985(3) and the Village of Melrose Park for failure to properly screen, hire, train and supervise its police employees in violation of 42 U.S.C. §§1983 and 1985. Count III charged all defendants with a conspiracy to impede, obstruct and defeat the due course of justice with intent to deny equal pro- tection in violation of 42 ¥.8.6. =3- §1985(2). Count V_ charged Officer Argento, Officer Sansone and Dreyer with malicious prosecution for the charges re- sulting from the traffic accident and arrest, thereby depriving Lenard of his civil rights under 42 U.S.C. §1983. A bifurcated trial lasting five weeks was held on liability and damages in February and March, 1980. While it was Lenard's testimony that following an auto- mobile accident he was cursed and struck about his head and right eye with what appeared to be a stick by Argento after he was placed in the backseat of Argento's squad car at the scene of the accident and that he was also beaten while entering the police station, the jury found that this was not so and returned a not guilty ver- dict in favor of all defendants upon Count I, the “beating count." Independent witnesses at the accident ~ scene testified as to Lenard's drunken de- meanor, that he assaulted the other driver, and that he was not beaten (RP 1950-1958 Davies; RP 1831-1833 Winslow) Officers Argento, Zito and Culotta testi- fied that Lenard was injured in two falls in the icy parking lot and by a fall on the Stairwell in the police station. These officers testified that Lenard was struggling and resisting his removal into the station. His size, drunken condition, his struggling, and the physical weather conditions were the cause of the falls. (RP 294-298; 752-762; 822-823; 2018-2021) Despite Lenard's admission of consum- ing nine alcoholic drinks, the finding of both an open can of beer and a gun in his Car (RP 285-287, 1832-1835) and the com- plaint of Dreyer that Lenard had punched her at the accident scene (RP 613-615, 1759, 702, 1950) the trial court permitted ~ = Counts III (42 U.S.C. 1985(2) conspiracy) and V (malicious prosecution) to go to the jury along with Counts I (42 U.S.C. 1983) and II (42 U.S.C. 1985(3). The jury found for Lenard on the two conspiracy charges of Counts II and III and the malicious prose- cution charge of Count V against Argento and Sansone only. As above stated, the jury found in favor of all defendants on Count I. In the damage portion of the trial, Lenard was prohibited by the Dis- trict Court from presenting any damage evidence concerning his physical injuries, consistent with the jury's finding of no "beating" under Count I. (RP 2345) No other evidence of damages was presented by Lenard. Over defense objection, the jury was given a jury verdict form by the trial judge which provided for three categories of damages: "compensatory", "“substan- tial", "punitive" and instructions § and -6- comments by the District Court relating to damages under that verdict form which intertwined mention that "substantial" damages could be awarded eleven times and that punitive damages could be awarded twelve times and other times in the verdict forms. (RP 2381-2385) The jury returned a finding of $10,000 actual and compensatory damages, $125,000 "substantial damages," and $150,000 punitive damages against Argento and $75,000 punitive damages against Sansone, The Court of Appeals affirmed the jury verdict for all defendants on Count I, i.e., as to the Section 1983 claim that plaintiff's rights were violated by beat- ing him. It reversed the jury verdict on Count V, the malicious prosecution claim, on the basis that the evidence showed ample probable cause for Lenard's arrest and prosecution for the charges made against oo Fa him . (e.g. driving while intoxicated, open can of beer and gun in his car, RP 285-287, 1832-1835). Noting that the parties agreed that Count III, the con- spiracy claim under’ Section 1985(3) related to a conspiracy to maliciously prosecute the plaintiff, the Court of Appeals also reversed the verdict on that count, holding that the Section 1985(2) conspiracy claim was dependent on the existence of a finding of malicious pros- ecution and given the lack of existence of the latter, Count III must be reversed "for failure of an act implementing the con- spiracy." (Appendix A., p. 24a.) On the issue of damages, the Court agreed with defendants' contention that the trial court's creation of a category of damages called "substantial damages" was in error, and that further the multiple repetition of the term "substantial" =-§- intertwined throughout the instructions required reversal of the whole damage award. Also, the Court of Appeals held for the additional reason that in light of its reversal of certain counts which involved punitive damages which had not been allo- cated as to the separate counts, the award should be reversed. The court stated: We cannot but feel that the repeated use of the phrase sub- stantial damages by the district court (ll times, plus inclusion as a category in the verdict form) in its instructions to the jury and the instruction that such damages could be awarded without proof of actual injury greatly influenced this _ large verdict. "Repetitious instruc- tions which place undue emphasis On matters favorable to either side constitute reversible error.’ Flentie v. American Community Stores, Corp. 389 F.2d 80, 83 (8th Cir. 1968). In light of the erroneous use of the term ‘substantial’ in the verdict form and the instructions in keeping with that form, we reverse and remand this case for retrial on the issue of damages. (emphasis added) (Appendix A., p. 50a.) ~~ With respect to the expense of the appeal, the court remanded determination of fees to the district court to be recal- culated in light of the results of the appeal. The Court expressly noted that the district court should also award fees for time spent on the issues on which plaintiff was successful on appeal. The full costs and a portion of the fees of the appeal were assessed against defendants Argento and Sansone, notwithstanding that’ they were required to appeal to rectify the very judgments against them which the Court of Appeal found in error. As to Count II, the Court notwith- standing the not guilty finding on the Count I beating charges, affirmed the ver- dict in favor of defendant Officers Zito and Culotta, but affirmed the verdicts against defendant Officers Argento and Sansone. Despite the affirmance of the not -10- guilty verdict on the beatings, the Court further ruled that the evidence of Lenard's physical injuries could be pre- sented to the jury on retrial of Count II as “injuries incurred somehow while under police supervision and protection" although "not as being the result of a beating" (emphasis added). (Appendix A., p. 55a.), a strange reasoning in light of the fact that even the plaintiff's attorney, Bertucci stated to the trial judge: "The only conspiracy was a conspiracy to beat him, correct? The first conspiracy in Count II?" (RP2346). (emphasis added) This was in an attempt to get the court to permit the injuries to be allowed as evi- dence of damages in regard to the Count II conspiracy alleged per 1985(3). The Court of Appeals remanded Count II to the district court for retrial on the issue of damages only. eli- To summarize, the Court below took the following action: 1. Affirmed the jury verdict as to Count I (physical beating alleged); 2. Affirmed the jury verdict as to lia- bility under Count II but reversed as to damages as to all counts and remanded for retrial as to damages under Count II (42 U.S.C. 1985(3) conspiracy to deny rights alleged) as to defendants Argento and Sansone; 3. Reversed the jury verdict as to Count III (42 U.S.C. 1985(2) conspiracy to obstruct justice) as to defendants Argento and Sansone; 4. Reversed the jury verdict as to Count V (malicious prosecution) as to defendants Argento and Sansone; 5. Affirmed the jury verdicts as to Zito and Culotta (finding in their favor); 6. Affirmed the directed verdict as to the Village of Melrose Park (finding in its favor); 7. Reversed the District Court's award of $180,500 in attorney's fees and remanded for recalculation in light of its opinion; 8. Remanded to the District Court for determination of attorney's fees on appeal for those issues on which Lenard prevailed in the Court of Appeals; 9. Suspended the application of Seventh Circuit Rule 18, which prohibits reassign- ment of remanded case to the same trial judge. o) 20 Defendants Argento and Sansone timely filed a petition for rehearing as to the affirmance of liability under Count II, the holding that evidence of Lenard's physical injuries should be presented to the jury on retrial, the assessment of the cost of the appeal against defendants, and the Court's further holding that Circuit Rule 18, providing that on remand a case shall follow normal procedures regarding non-assignment to the same trial judge should not apply. This petition for re- hearing was denied without comment by the Court on March 10, 1983. REASONS FOR GRANTING THE WRIT 1. IN CONTRAVENTION OF THE DECISIONS OF THIS COURT AND OTHER COURTS ' OF APPEALS, THE DECISION BELOW PERMITS RECOVERY UNDER 42 U.S.C. §1985(3) WHERE THE JURY FOUND NO OVERT ACT AND NO EVIDENCE EXISTS TO CONNECT THESE DEFENDANTS WITH ANY OTHER WRONGFUL CONDUCT DIRECTED TOWARD THE PLAINTIFF -13- Until this Court of Appeals decision, it was an established principle of law that for a plaintiff to recover based on a Section 1985(3) conspiracy, he was obliged to establish by a preponderance of the evi- dence that (a) defendants entered into a plan or agreement to deny plaintiff his civil rights, (b) one or more of the defen- dants participated in an overt act in fur- therance of the conspiracy, and (c)that the act resulted in the alleged damage sus- tained. As this Court made clear in its decision in Collins v. Hardyman, 341 U.S. 651, 659 (1951), unlike statutes dealing with criminal conspiracy, wherein the mere existence of the unlawful agreement may be the basis for liability, Section 1985(3) expressly requires “overt acts necessary to consummate the conspiracy as an action- able wrong." Similarly, in Griffin v. Breckenridge, 403 U.S. 88, 103 (1971), -lé- this Court held that to state a cause of action under Section 1985(3), the plaintiff must prove that, inter alia, the conspirators "did, or caused to be done, ‘any act in furtherance of the object of [the] conspiracy,' whereby another was - « « ‘injured in his person' or property Or .. . ‘deprived of having and exercis- ing any right or privilege of a citizen of the United States.'" These decisions are consistent with the general law governing civil conspiracies, under which it is held that there is no liability for a civil con- spiracy unless damage results from acts done by one or more of the conspirators in furtherance of the conspiracy. See, e.g., Blackwelder v. Millman, 522 F.2d 766 (4th Cir. 1975). In constrast to the foregoing well-established principles of law, the decision below stands for the proposition that once an agreement is found, the =~ = alleged conspirators will be held liable for any injuries sustained by the plain- tiff, whether or not such injuries were the result of any actions in furtherance of the conspiracy, and, indeed, whether or not one or more of the conspirators caused such injuries. As this Court has previously noted, "[t]he tort of '‘conspiracy' is poorly defined, and highly susceptible to judicial expansion..." United Mine Workers of America v. Gibbs, 383 U.S. 731, 732 (1966). The opinion of the Court below represents a classic case of the dangers of judicial expansion of this tort warned against by this Court in Gibbs. Id. at 732n.19. It also brings clearly into focus the acute need for this Court to furnish proper standards for liability under a civil conspiracy theory and to set aside the unprecedented and overly broad expan- sion of this theory by the Court of Appeals. -16- The factual summary of this case by the Court of Appeals dramatizes the plight of these defendants and indeed of all police officers. The first contact between the Plaintiff and Officer Sansone occurred when as a result of a citizen complaint, (RP 486) Officer Sansone went to the scene of a minor automobile accident where Lenard, the driver of one car, was present along with the driver of the other car and other witnesses. Officer Argento came to the scene shortly after Officer Sansone. Based on Lenard's intoxicated condition, the presence of a gun and open can of beer in Lenard's car and the statements of the Other driver concerning Lenard's physical assault on her, Officers Sansone and =l7< Argento arrested Lenard. (RP 488 - 494; 280 - 289) After Lenard was taken into custody at the scene and placed in Argento's squad car, the evidence is in direct conflict as to Argento, but not as _ to Sansone, who never had any further contact with Lenard, and presented to the jury the "seminal issue of the entire case" (Appendix A., Pp. 15a.) In brief, the contentions of the parties were as follows: 2The Court of Appeals held as a matter of law that the arrest was lawful and reversed the jury's ver- dict in favor of the plaintiff on Count V_ which charged malicious prosecution. The Court of Appeals also held in accordance with established conspiracy law that in the absence of the overt act of malicious prosecution, there could not be a con- spiracy to maliciously prosecute Lenard as charged by Lenard in Count II of his complaint. Had the Court of Appeals applied this same standard to the other conspiracy charged by Lenard in Count I of his complaint, this Petition would not be necessary. =-18- A. Lenard: -- Lenard testified that after being placed in Argento's squad car he was struck by Argento about his head and right eye with what appeared to be a stick, rendering him unconscious. His next recollection was that of sitting in the squad car as it pulled up to the police station and hearing Argento tell someone "I got a big Black nigger." He testified that he was then grabbed about the neck, pulled from the car, fell to his knees and was kicked and beaten. (RP 1574 - 84) BS. Officers” -- The testimony of the officers was that Lenard was drunk and abu- sive at the scene of the accident. (RP 280 Sand also independent witnesses Davies and Winslow (RP 1831-33, 1958,) who saw the arrest and testified Argento did not strike Lenard. -19- - 287) Officer Argento testified that upon arriving at the police station he attempt- ed to remove Lenard from the car, but Lenard was kicking, using vulgar and ob- scene language and resisting. He radioed into the station for assistance and Officers Zito and Culotta responded. Officers Argento, Zito, and Culotta all testified that Lenard was struggling and resisting his removal into the station. (RP 1910 Culotta; Zito 2016 - 2023) Given his struggling, size, drunken condition and weather conditions, he was injured in two falls in the icy parking lot and a fall on the stairwell in the police station. (RP 290 - 299 Argento) The jury returned a verdict in favor of the officers, thereby finding that Lenard's injuries were not the result of a beating as he had alleged in Count I of his complaint but resulted from his own im- -20- proper resistance to being taken into the Station house. That the jury was of this opinion is further evidenced by the not guilty verdicts in favor of Officers Zito and Culotta. Their only involvement was to assist in bringing Lenard into the station house from the squad car. If Lenard's Civil rights had been violated at that time, i.e., by use of excessive force, Zito and Culotta would have been found liable to plaintiff under Count I as would Argento. No other evidence other than as set forth above was offered to explain Lenard's physical injuries. The Court of Appeals affirmed the jury verdict in favor of the officers on the Count I charges’ under Section 1983 that plaintiff was beaten. As a matter of fact and judicial determina- tion, plaintiff was not beaten as he claimed. -2]- After being brought into the station that afternoon but before his release at 3:00 A.M. the next morning, plaintiff's evidence tells of various wrongs that occurred, including dousing with cold water while in his cell, failure to provide medical care and verbal abuse. (RP 1584 - 1596) While this evidence was contested vigorously by the Village and its police personnel, it may be that the jury found plaintiff's evidence to be credible on these matters. However, as the transcript of evidence will reveal, there is not a scintilla of evidence to connect either Officer Argento or Officer Sansone _ to these acts. Plaintiff did not testify that Officer Argento or Officer Sansone had any part in these activities. Officer Argento testified that once he had placed Lenard in the cell, his only further involvement with Lenard was when he returned to the @22@ cell a few minutes later to inquire whether Lenard wanted to see a doctor, which Lenard refused. Officer Argento then went to another area of the station to complete the reports on the incident. (RP 309) 4 Officer Sansone testified that his last contact with Lenard was at the scene of the acci- dent. (RP 503-4) > This evidence is unop- posed. The only activities with which Officers Argento and/or Sansone were associated, i.e., the arrest of Lenard at the scene and bringing him into the station house, have been found to be lawful. Yet 4We are concurrently moving to have the report of proceedings forwarded to this Court so that the Court can note the accuracy of these statements as to the evidence. "Id. o23= Officers Argento and Sansone find them- selves facing a trial for damages result- ing from a conspiracy under Section 1985 charged in Count II of plaintiff's com- Pplaint for which there is no support in the evidence as to these defendants, and even more shocking, the plaintiff may present evidence of injuries from a beating he claims to have sustained but has been judi- cially determined not to have happened. The rationale offered by the Court of Appeals for this most remarkable result, if left standing, will generate confusion and injustice for years to come. The Court stated: While Sansone's contact with Lenard was primarily at the accident scene, Argento did place Lenard in his police car, drive him to the Melrose Park police station and escort him into the police station. There was testi- mony at trial that Sansone called Lenard a ‘shine' to a tow truck driver at the accident scene. Lenard testified that Argento called him a ‘big Black nigger' -24- and hit him in the right eye and about the face with what appeared to be a stick. While the evidence does not link Argento and Sansone to all the events of January 31, there was sufficient evidence for a jury to reasonably believe that there waS an overt act- and circumstantial evidence of an agreement among the police, par- ticularly Argento and Sansone, to conspire to deprive Lenard of his civil rights. Furthermore, there was sufficient evidence of racially discriminatory animus to meet the Griffin standard of §1985 conspiracies. (Appendix A., pp. 20a-21a.) The alleged racial remarks which, if made, relate only to the element of a pos- sible "racially discriminatory animus" but certainly do not amount to an overt act in furtherance of a conspiracy. See, €.g9., Armstrong v. Borie, 494 F.Supp. 902, 906 (E.D. Pa. 1980) .° The only other conduct alluded to by the Court of Appeals as being 6 with respect to the remark attributed to Sansone, it was made at the scene of the occurrence after Lenard had departed. =98— in furtherance of the Count II conspiracy is the alleged beating in the "right eye and about the face with what appeared to be a stick." (Appendix A., p. 2la.) This was negated by two independent witnesses and the jury verdict on Count I. With all due respect, this is a non-sequitur of the first order. The court is citing a beating that did not occur as evidence of a co- nspiracy to deny Lenard his civil rights. The court concedes that the evidence does not link Officers Argento and Sansone to "all the events of January 31". (Appendix Ae, Pe 21a.) In plain fact, as recited above, there is no evidence to connect Officers Sansone and Argento to any events after Lenard was brought into the station house. Nevertheless, the court’ says "there was sufficient evidence for a jury to reasonably believe that there was ar overt act and circumstantial evidence of -26- an agreement among the police, particular- ly Argento and Sansone to conspire to de- prive Lenard of his civil rights." (Appendix A., p. 21a.) The opinion and transcript of evidence are silent as to what this evidence is, circumstantial or otherwise. The opinion of the Court of Appeals goes on to state: While the jury may have found insufficient evidence of a beat- ing, that does not mean that there was insufficient evidence of a §1985(3) conspiracy. The jury could have found that there was insufficient evidence to tie all the defendants to the alleged beating, yet enough’ evidence based primarily upon the injuries Sustained by Lenard during his police custody, to reasonably conclude that at least Argento and Sansone had entered into and committed an act in the further- ance of a conspiracy to deny equal protection. Emphasis added. (Appendix A., p. 22a.) The dangerous precedent established by this decision is further made apparent by the holding of the Court of Appeals that: =2F= While the district court was correct in holding that no evi- dence of damage from an alleged "beating' could be presented to the jury because of its prior decision, the district court erroneously prevented the presen- tation of any of the proffered evidence of injuries, medical treatment and losses caused by those injuries sustained while in police custody as they relate to the conspiracy counts. [In other words, any evidence of injuries proved incurred from the time shortly after the accident to Lenard's release to his family late that evening should be ad- mitted as they relate to being sustained while in police cus- tody. These injuries cannot be presented or argued, however, as being the result of a beating but presented as injuries’ incurred somehow while under police super- vision and protection. (Appendix A., Pp. 55a.) The opinion goes on to state: However, the instructions for the conspiracy damages were not isolated to a particular event but rather related to the depri- vation of rights of "due course of justice" and “equal protection under the law." An award under §1985 would not be duplicative of the prosecution or the beating but, in this case, go to the find- ing of deprivation of civil rights while in police custody. -28- See, Corriz v. Naranjo, 667 F.2d at 896-898, While courts have held that an award of damages for a state tort claim joined with a federal civil rights action would be duplicative when there is an adequate state tort remedy, Clapper v. Flynn, 605 F.2d 519, 529 (10th Cir. 1979), there are in this case, only strictly fed- eral civil rights claims. As previously indicated, §1985 provides damages for “injury or deprivation." Thus, it is pos- sible under §1985 to award dam- ages for the act which effectu- ated the conspiracies and for the conspiracy which caused the dep- rivation. See, Stringer Vv. Dilger, 313 F.2d 536 (10th Cir. 1963). (Appendix A., pp. 59a- 60a.) Thus, the rationale of the Court's de- cision appears to be that because Lenard's damages, e.g., alleged humiliation at the instance of unidentified personnel at the village police station was broader then the alleged beating, the evidence of physical injuries can still come in. This interpretation of Section 1985(3) is with- out merit for a number of reasons. First of all, it is in direct conflict with this =29- Court's decision in Carey v. Piphus, 435 U.S. 249 (1977) wherein this Court recog- nized that as a general rule tort rules of damages should be applied in civil rights actions, and specifically noted that this principle is incorporated in 42 U.S.C. §1985(3). 435 U.S at 256 n. 10. This is apparent from the very language of Section 1985(3) which provides in relevant part that: If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises indirectly, any per- son or class of persons of the equal protection of the laws, or of equal privileges and immuni- ties under the laws .. . in any case of conspiracy set forth in this section. .. if one or more persons engaged therein do, or cause to be done, any act in fur- therance of the object of such conspiracy, whereby any person shall in injured in his person or property, or deprived of having and exercising any right or priv- ilege of a citizen of the United States, the person so injured or deprived of such rights and priv- ileges may have and maintain an action for the recovery of dam- =30- ages occasioned by such injury or deprivation of rights and privi- leges against any one or more of the persons engaged in such con- Spiracy... Thus, under the express language of Sec- tion 1985(3), there can be no liability unless the alleged conspirator commits an act in furtherance of the conspiracy which results in injury to the plaintiff. In the instant case there is no evidence that the alleged conspiracy engaged in by Officers Sansone and Argento resulted in the physi- cal injuries sustained by plaintiff for which they alone are now being held respon- sible. The apparent holding of the court be- low that on retrial on damages on the Section 1985(3) conspiracy count plaintiff may present evidence of the _ physical injuries sustained is directly contrary to the jury's finding that no beating occu- rred. It must be borne in mind that «3i< acco.ding to the evidence presented, the injuries sustained by Lenard after his arrest occurred in only one of two ways, i.,e., according to Lenard's testimony by an intentional beating, or according to the defendant officers' testimony, as a result of Lenard's resisting arrest. No other explanations appear in the record. the jury has rejected plaintiff's evidence by their Count I verdict. Yet the Court of Appeals holds that because these injuries were “incurred somehow" while in police custody, these officers are to have dam- ages assessed against them. This standard makes an arresting officer an insurer of the well-being of each prisoner he law- fully arrests while that prisoner is in custody. The Court of Appeals has appar- ently eliminated any need for the plain- tiff to prove "an act" in furtherance of a conspiracy. -32- In support of its holding, the Court of Appeals cites, inter alia, the rule of law that prisoners are entitled to protection from excessive use of force by police offi- cers (Appendix A., pp. 55a-56a.) Defend- ants do not dispute this basic proposition of law. What is critical, however, is that this was not the theory upon which plain- tiff argued his case to the jury. He Claimed that his injuries were sustained as the result of an intentional beating, and this argument was expressly rejected by the jury. It is an elementary rule of law that on appeal a plaintiff may not change the theory upon which his case was presented to the jury. See, e.g., Sandford v. R.I. Coleman Realty Company, Inc., 573 F.2d 173 (4th Cir. 1978). It follows that the Court of Appeals may not sua sponte -33- allow the plaintiff to do so. Yet this is the apparent effect of the decision below.’ The Court below also asserted in sup- port of its decision that where there is a showing of deliberate deprivation of con- stitutional rights while confined,a prisoner is entitled to damages. (Appendix A., Pp. 56a.) Again, defendants do not contest this as a general proposition of law. However, there must be some showing that for defendants to be held responsible for such deprivation they were indeed ‘The Court below cited in support of its decision inter alia, Corriz v. Naranjo, 667 F.2d 892 (l0th Cir. 1981). In contrast to the instant case, the defendants in that case were expressly found guilty of illegal arrest and false imprisonment and it was the deprivation of plaintiff's right not to be so falsely arrested and imprisoned as to which defendants were held responsible. In contrast, in the instant case defendants' arrest and initial con- finement have expressly been found to be lawful. -34- causally linked to it. See, e.g., Benson v. Allphin, 544 F.2d 464 (N.D.I11. 1982). It is simply not the law, as the opinion below appears to suggest that arresting officers are responsible for anything that may happen to a prisoner once arrested and while in police custody. See, e.g., Heslip v. Lobbs, 554 F.Supp. 694 (E.D. Ark. 1982). The gross and obvious unfairness of including evidence of such_ physical injuries in a retrial is that despite the fact that it has already been adjudicated that Officers Argento and Sansone are not liable for inflicting these injuries on the plaintiff, it is probable that in assessing damages on retrial a jury would view this case as though they had. Even if the jury is carefully instructed that Officers Argento and Sansone did not in- flict these injuries, but rather that they =35- may be held responsible for them merely be- cause they are injuries incurred somehow while under police supervision and pro- tection will not prevent the injustice likely to result. Jurors cannot be fair when they do not know the facts. Even if it is clearly explained to a jury that Sansone and Argento were not found to have inflicted the injuries, their inclusion cannot but make jurors wonder as to why, then, they are to consider these injuries in assessing damages against these two men. After being told that the two offi- cers have been found guilty of a "conspiracy" to deprive Lenard of his rights, such jurors are likely to assume the worst, and return an inflated and wholly unwarranted award of damages. In any retrial on damages, evidence of physical injuries of Lenard must in law and in fairness to these individual defendants -36- not be permitted. As elsewhere stated, however, judgment in favor of officers Argento and Sansone should be granted in- stead of a retrial. II. ATTORNEY'S FEES AND COSTS WERE IMPROP- ERLY AWARDED FOR THIS APPEAL Without waiver of the foregoing, de- fendants assert that even if the Court's affirmance on Count II is allowed to stand, plaintiff should not be awarded fees and costs involved in this appeal. As is apparent from the briefs filed by the defendants in this appeal and the opinion of the Court of Appeals below, this appeal by defendants was necessitated by the substantial and obvious errors found by the Court of Appeals to have been com- mitted at trial by the district court, e.g., the submission to the jury of the three-tiered damage formula, which includ- ed the non-existent category of "substan- tial damages." Under these circumstances, =37= and in light of the results of the appeal in this matter, i.e., the success of defen- dants on most substantive points raised on appeal, petitioners respectfully submit that it would be contrary to the intended purposes of 42 U.S.C. §1988 and Rule 52 of the Federal Rules of Civil Procedure to award either attorney's fees or costs to respondent related to the one substantive issue on this appeal on which respondent was successful, i.e., the affirmance of the liability verdict on Count II. Petitioners respectfully submit that in light of the foregoing, this case pre- sents "special circumstances" which would justify a denial of an award of fees and costs. See, e.g., Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968). While the experience of the under- signed attorneys with the trial judge in this case, aside from our strong but re- =38- spectful disagreement with his jury in- structions, verdict forms and a number of rulings, has been such that we enjoyed par- ticipating in this case before him, as we do in other cases before him, and that we respect his integrity. Mindful that a case is not the lawyer's case, but the party's case, we have discussed in full the opinion of this Court with our clients. They bear no resentment to the particular trial judge despite their individual feelings as to some of the rulings made by that judge but are fearful that that judge's views as to the application of the law to the facts of this case, being very different from the Appeal Court's unanimous opinion, which they have read, is such that they question the need for the removal of the Seventh Circuit Rule 18, which has been explained to them. While they are fearful of causing an unfavorable impression with said trial =-39- judge with this request, they request that this Court order that Seventh Circuit Rule 18 not be eliminated in this case so that the judicial selection will take its normal course rather than structuring this case's return to the same trial judge if any retrial is to be had. CONCLUSION For the reasons stated, petitioners respectfully ask this Court to proceed as follows: 1. TO reverse the 7th Circuit U.S. Court of Appeals and rule that Count II, the alleged conspiracy, based on 42 U.S.C. 1985(3) be dismissed, the key reason for which, being that the only conspiracy (even arguendo) shown by :the evidence was no broader than to commit the acts for which petitioner's Argento and Sansone have been found by the jury to be not guilty, i.e., of denying Lenard's civil -40- rights by beating. This, it is noted was conceded by one of Lenard's trial counsel. 2. Without prejudice to the _ fore- going, in the event the Court does not pro- ceed as prayed for in the preceding para- graph, to rule that in any retrial on the issue of damages that the physical injur- ies received in the beating alleged but judicially found not to have occurred, cannot be utilized as evidence nor for argument for the reasons stated in the petition. 3. Without prejudice to the _ fore- going, that in the event the Court does not proceed as prayed for in the two preceding paragraphs, to set forth any cautionary and guideline conditions that should govern any retrial, specifically what warnings should accompany the jury in- structions and evidence, if any, as to in- juries to be permitted, and rule with -4l- respect to the appropriateness of fees for the representation of Lenard, including the denial of all fees in appellate tribu- nals for the reasons that all appellate activity has been made necessary due to the erroneous rulings of the trial court which were not the fault nor responsibility of these petitioners and that for the reasons Stated, that the Court of Appeals suspen- sion of 7th Circuit Rule 18 not be permit- ted. 4. To note that the listing of the above alternatives is made in discharge of the duty of the undersigned as lawyers but is not intended in derogation of the com- mittment to the relief prayed for in para- graph no. l. -42- Respectfully submitted, John G. Poust Counsel of Record Stephen E. Sward Christine M. Wheelock . John G. Poust | Stephen E. Sward Christine M. Wheelock ROOKS, PITTS, FULLAGAR AND POUST 55 West Monore Street, #1500 Chicago, Illinois 60603 (312) 372-5600 -43- APPENDIX TO PETITION FOR WRIT OF CERTIORARI : TABLE OF CONTENTS APPENDIX DOCUMENT PART PAGE Opinion of The A la Court of Appeals for The Seventh Circuit issued February 1, 1983 Mandate of The Court B lb of Appeals for The Seventh Circuit, dated February l, 1983 Order of The Court B 3b of Appeals Denying Petition for Re- hearing, dated March 10, 1983 Order of The Court B 5b of Appeals Staying Issuance of Mandate, dated March 18, 1983 Final Memorandum © le Opinion of District Court on Attorney's Fees, dated July 29, 1981 Memorandum Opinion of C Se District Court on Attorneys' Fees, dated May 29, 1981 APPENDIX DOCUMENT PART PAGE Memorandum Opinion of C lle District Court Enter- ing Judgment on the Verdicts Jury Verdicts on D ld Liability and Damages Texts of Constitutional E le Provisions, and Rules Involved IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 80-2602, 80-2666, 81-2036, 81-2434 BENNIE LENARD, Plaintiff-Appellee, Cross-Appellant, Ve ROBERT ARGENTO & JOSEPH SANSONE, Defendants-Appellants, Vv. VILLAGE OF MELROSE PARK, Defendant-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 C 1208 Joel M. Flaum, Judge. ARGUED NOVEMBER 10, 1981 - DECIDED FEBRUARY 1, 1983 Before PELL, Circuit Judge, CUDAHY, Circuit Judge, and GRANT, Senior District Judge.* * Honorable Robert A. Grant, Senior District Judge of the United States District Court for the Northern District of Indiana, sitting by designa- tion. la GRANT, Senior District Judge. This case arises from the events of January 3l, 1977 involving plaintiff-appellee, Bennie Lenard, and several police officers of the Village of Melrose Park, Illinois. The particular events of the case are disputed but we will attempt to provide a fair sum- mary of the facts. | Lenard, a 41 year old black mechanic, discovered when he left work at 7:00 a.m. on January 31 that his car had a flat tire. While waiting for the spare tire to be repaired, he and a co-worker went to a. neighborhood bar where Lenard consumed two shots of vodka and two glasses of beer. After changing the tire, Lenard returned to the bar where he consumed in a 2 to 2 1/2 hour period two more shots of vodka and three glasses of beer. He had nothing to eat during this time. About 1:00 p.m., Lenard and his co-worker left the bar to go to the co-worker's home, each driving his 2a own vehicle. While en route, Lenard col- lided with a car driven by Andrea Dreyer, a defendant in the district court trial but not a party in this appeal. There is a dispute whether Lenard's car crossed the center line and struck Dreyer's vehicle. The damage to each car was minor but the drivers quarreled regarding fault. Dreyer, in her deposition, admitted shout- ing vulgarities at Lenard. Witnesses, including a passenger in the Dreyer car, testified Lenard appeared drunk and that he struck Dreyer's shoulder with his fist and grabbed her. The Melrose Park police were called with Officer Joseph Sansone the first to arrive at the accident scene. Officer Robert Argento arrived several minutes later. Lenard was arrested for drunk driving and several other traffic offenses. A scuffle occurred while the officers tried 3a to handcuff Lenard and place him in Argento's squad car. Lenard contends he was beaten by Argento with his nightstick while in the squad car and knocked uncon- scious. Argento searched Lenard's car after the arrest and discovered a handgun and an opened half can of beer. After his arrest, Argento drove Lenard to the Melrose Park police station where Lenard contends he was further kicked, beaten and called a "black nigger." His next memory is that of lying on the wet floor of a cell in his underwear in extreme pain and cold. He requested to go to a hospital but someone said: "Leave. him alone. He doesn't want to go to the hospi- tal." Lenard was unable to identify any of the officers because of his’ facial injuries. Lenard remained in custody at the Melrose Park police station until late that evening. During the evening while Lenard was still in a cell in the Melrose Park police station, Floydell Henning (Lenard's stepson) testified he heard racial slurs, i.e., "Chicken George,” over the loudspeaker in the station. He could not identify the parties involved. At one point while still in police custody, Lenard was brought to the Westlake Community Hospital where he was treated for his injuries and returned to the police. Lenard complains that his family came to the jail on three occasions that evening before his release was finally obtained. Lenard was hospitalized for his injuries for 39 days and later underwent surgery for the injuries. There was medi- cal testimony at trial that he suffered permanent'- sight impairment from his injuries. Officers Argento and Sansone deny that Lenard was beaten at any time with clubs or anything else. Two witnesses present at the accident scene testified that they did not see Lenard beaten. The police contend that an altercation occurred in the icy police station parking lot while attempt- ing to remove Lenard from the squad car. Because of his size (6'3", 260 pounds) and drunken condition, three officers, Argento, Culotta and Zito, were necessary to remove him from the car. The officers testified that Lenard swore at them and resisted being taken into the _ police station. The officers further contend that Lenard repeatedly fell in the icy lot and on the stairway of the station because of his constant struggling. They deny that any beating occurred and = maintained Lenard's injuries occurred while resisting his removal into the police station. Lenard was charged with the following state offenses: driving while under the influence of intoxicating beverage; impro- per traffic lane usage; failure to reduce speed to avoid an accident; battery; tran- sportation or possession of alcoholic liquor; possession of a firearm without a firearm identification car; unlawful tran- sportation or use of weapons; resisting a police officer and driving without a valid driver's license. A jury convicted Lenard of the petty offense of transportation of alcoholic liquor, I111.Rev.Stat. 1977, Ch. 95 1/2, par. 11-502, and acquitted him on all other charges. The transportation conviction was subsequently reversed and remanded by the Illinois Appellate Court because of the trial court's refusal to allow Lenard to cross-examine the police officers for impeachment purposes. People v. Lenard, 79 I11l.App.3d 1046, 398 N.E.2d 1054 (1979). In dicta, however, the court did 7a State that "[t])he evidence adduced was ample to sustain defendant's conviction," Id. at 1058. Lenard initiated this action in a five-count complaint pursuant to several sections of the Civil Rights Act of 1871, 42 U.S.C. §§1983, 1985 and 1988. The named defendants included the Village of Melrose - Park, Robert Argento, Joseph Sansone, Bruce Culotta, George Zito, Andrea Dreyer, Dr. T. Mehrpuyan and Westlake Community Hospital. Westlake Hospital and Dr. Mehrpuyan reached a settlement with Lenard and they, along with Count IV of the Complaint, were dismissed from the suit. Count I of the Second Amended Complaint charged Police Officers Argento, Sansone, Culotta and Zito with violating 42 U.S.C. 519831 by beating Lenard. Count II charged these same officers with conspiracy to deprive equal protection of the law by use of brutal and excessive force on Lenard in violation of 42 U.S.C. §1985(3)* and the 1 49 U.S.C. §1983 provides: Every person who, under color of any statute, ordinance, regulation, custan, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. §1985(3) provides: (3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the con- stituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to (continued on next page) 9a Village of Melrose Park for failure to pro- perly screen, hire, train and supervise its police employees in violation of 42 U.S.C. §§1983 and 1985. Count III charged conspiracy to impede, obstruct and defeat the due course of justice with intent to deny equal protection in violation of 42 ~ (eont inued) prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal man- ner, toward or in favor of the election of any lawfully entitled qualified persons as an elec- tor for President or Vice President, or as a Menber of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citi- zen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or depriva- tion, against any one or more of the conspira- tors. 10a U.S.C. § 1985(2)°. So charged under Count III were the Village of Melrose Park, Argento, Sansone, Culotta, Zito, Dreyer, Westlake Community Hospital and Dr. T. Mehrpuyan (the latter two were dismissed before trial). Count V charged Argento, Sansone and Dreyer with malicious prosecu- tion for the charges resulting from the 3 49 U.S.C. §1985(2) provides: (2) If two or more persons in any State or Territory conspire to deter, by force, intimida- tion, or threat, any party or witness in any court of the United States fran attending such court, or fram testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, present- ment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any ver- dict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons con- spire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; lla traffic accident and _ arrest, thereby depriving Lenard of his civil rights under 42 U.S.C. §1983. Bifurcated trials lasting five weeks were held on liability and damages in February and March, 1980. A default judg- ment was entered against defendant Dreyer. In the liability phase of the trial, the jury returned a verdict for all the defen- dants on the “beating” charge of Count I. However, the jury found for Lenard on the two conspiracy charges of Counts II and III and the malicious prosecution charge of Count V against Argento and Sansone only. In the damage portion of the trial, Lenard was prohibited from presenting any damages resulting from the "beating" because the 4 jury found no "beating" under Count I. No 4 wTHE COURT: To the extent that the proffer relates to injuries dericed [sic] as a result of the incident of 1/31/77, this Court, in light of the jury's verdicts in this case, would preclude a presentation of such evidence, if it relates, as has been described by Mr. Bertucci. And the prof- (continued on next page) 12a Other evidence of damages was presented by Lenard. Over defense objection, the jury was given a three-tier jury verdict form by the trial judge and instructions relating to possible damages under that form. The jury returned a finding of $10,000 actual and compensatory damages, $125,000 "sub- stantial damages" and $150,000 punitive damages against Argento and $75,000 puni- tive damages against Sansone. The Village of Melrose Park, Argento and Sansone raise four issues on this appeal. First, whether the district court's use of a three-tier damage verdict form and its damage instructions which stressed "substantial damages” were erron- eous. Second, whether the amount of damages awarded by the jury is against the (cont inued) fer, of course, may stand and objection to the Court excluding it may stand; and in light of the Court's earlier carments, as well as these, would rule that inadmissible for submission to the jury for consideration in a damage phase of the trial." (Tr. 2308). 13a manifest weight of evidence and excessive as a matter of law. Third, whether there was ample evidence to establish a good faith belief in the officers for probable cause to arrest Lenard and prosecute the criminal charges requiring a directed ver- dict for the defendants on the malicious prosecution charge of Count V. Fourth, whether a conspiracy without an overt act can be the basis of a damage award or whether there can be a duplication of an award for conspiracy when damages have been already awarded for the act, On cross-appeal, Lenard raises several issues. First, whether the trial court erred in permitting a good faith immunity defense to be asserted by the Village of Melrose Park. Second, whether the trial court erred in not specifically mentioning Lenard's claim of a beating in its verdict form. Third, whether the jury verdict for the "beating" count was against the mani- 14a fest weight of the evidence. Claims are also raised regarding attorneys' fees and costs under 42 U.S.C. §1988, 28 U.S.C. §1920 and Fed. R. Civ. P. 54(d). Both Lenard and the defendants raise other Claims of error, including arguments of various counsel, instructions to the jury and the district court's judgments on Motions in Limine. Each will be addressed individually. II. Liability a. Police Officers Count I of the Second Amended Complaint alleged that the four named police officers beat Lenard while he was in police custody in violation of his civil rights. This beating was the seminal issue of the entire case. Lenard testified that he was cursed and struck by Argento after he was placed in the backseat of Argento's Squad car. Lenard contends that he was struck about his head and right eye with 15a what appeared to be a stick. After being knocked unconscious, Lenard testified his next recollection was that of sitting in the squad car as it pulled up to the police Station and hearing Argento tell someone "I got a big Black nigger." He testified that he was grabbed about the neck and pulled from the car. He fell to his knees and was kicked and beaten. Lenard's next memory is that of being in a cold wet cell in his underwear. Lenard could not iden- tify any of the officers involved because of his facial injuries. Several witnesses at the accident scene testified that they did not see Lenard being beaten. Officers Argento, Zito and Culotta testified Lenard was injured in two falls in the icy parking lot and by a fall on the stairwell in the police station. These officers testified that Lenard was struggling and resisting his removal into the station. His size, 16a drunken condition, his struggling, the physical weather conditions all contri- buted to the falls. The jury, after hear- ing all the testimony, returned a verdict that Lenard was not beaten. While there is clearly a conflict of testimony, the question of credibility and weight of the evidence is within the pur- view of the jury. Pinkowski v. Sherman Hotel, 313 F.2d 190, 193 (7th Cir. 1963). A jury verdict cannot be lightly set aside so long as it has a reasonable basis on the record. zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969); Wyant v. J.I. Case Co., 633 F.2d 1254, 1256 (7th Cir. 1980). Viewing the evidence in a light most favorable to the defendants, the prevailing parties, (Smith v. Rogers, 290 F.2d 601, 602 (7th Cir. 1961)), there was a reasonable basis in the record for the jury verdict and the evidence will not be reweighted. Rupe v. 17a Spector Freight Systems, Inc., 679 F.2d 685, 697 (7th Cir. 1982) (Judge Swygert dissenting); Musgrave v. Union Carbide Corp., 493 F.2d 224, 229 (7th Cir. 1974). The jury determination that Lenard was not beaten will not be disturbed. Counts II and III of the complaint charged the named officers with violation of §§1985(2) and (3). The jury found, how- ever, only Argento and Sansone liable for civil rights conspiracy. Argento and Sansone argue that they cannot be liable for a conspiracy to "beat" when the jury found that there was no "beating". How- ever, the charge given to the jury was not a "conspiracy to perform a beating" but rather a conspiracy to deprive [Lenard] due course of justice and equal protection of the law. (Tr. 2202-03). As this court outlined in Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 18a 754 (1980): A civil conspiracy is "a combina- tion of two or more persons act- ing in concert to commit an unlawful act, or to commit a law- ful act by unlawful means, the principal element of which is an agreement between the parties ‘to inflict a wrong against or injury upon another,’ and ‘an overt act that results in damage',." Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir. 973) (citation omitted). xk A plaintiff seeking redress need not prove that each partici- pant in a conspiracy knew the "exact limits of the illegal plan or the identity of all partici- — therein." Hoffman-LaRoche Inc., su re 447 F. ve (re Gis. i at 875. An express agreement {Miah all the conspira- tors is not a necessary element of a civil conspiracy. The participants in the conspiracy must share the general conspira- torial objective, but they need not know all the details of the Plan designed to achieve _ the objective or possess the same motives for desiring the intended conspiratorial result. To demon- Strate the existence of a con- spiratorial agreement, it simply must be shown that there was "a single plan, the essential nature and general scope of which [was] 19a known to each person who is to be held responsible for its conse- quences." Id. 600 F.2d at 620-21. Thus, there cannot be a civil cause of action for conspiracy under §1985 without an overt act. Williams v. St, Joseph Hospital, 629 F.2d 448, 451 n.3 (7th Cir. 1980). "(i]t is the overt act which moves the conspiracy from the area of thought and conversation into action and causes the civil injury and resulting damage.” Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir. 1959), overruled in part on other grounds, Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962). While Sansone's contact with Lenard was primarily at the accident’ scene, Argento did place Lenard in his police car, drive him to the Melrose Park police sta- tion and escort him into the police sta- tion. There was testimony at trial that Sansone called Lenard a "shine" to a tow 20a truck driver at the accident scene. Lenard testified that Argento called him a "big Black nigger" and hit him in the right eye and about the face with what appeared to be a stick. While the evidence does not link Argento and Sansone to all the events of January 31, there was sufficient evidence for a jury to reasonably believe that there was an overt act and circumstantial evi- dence of an agreement among the police, particularly Argento and Sansone, to con- spire to deprive Lenard of his civil rights. Furthermore, there was sufficient evidence of racially discriminatory animus to meet the Griffin standard for §1985 con- spiracies. The language requiring intent to deprive of equal protection, Or equal privileges and immun- ities, means that there must be some racial, or perhaps otherwise class-based, invidiously discri- minatory animus behind the con- spirators' action. The con- spiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by law to all. 21a Griffin v. Breckenridge, 402 U.S. 88, 102 (1970) (footnotes omitted) (emphasis in original). See also Murphy v. Mount Carmel High School, 543 F.2d 1189, 1192 n.1 (7th Cir. 1976); Potenze v. Schoessling, 541 F.2d 670, 672 (7th Cir. 1976); Lessner v. Braniff Airways, Inc., 518 F.2d 538, 540 (7th Cir. 1975). While the jury may have found insuffi- cient evidence of a beating, that does not mean that there was insufficient evidence of a §1985(3) conspiracy. The jury could have found that there was insufficient evidence to tie all the defendants to the alleged beating, yet enough evidence, based primarily upon the injuries sustained by Lenard during his police cus- tody, to reasonably conclude that at least Argento and Sansone had entered into and committed "an act" in the furtherance of a conspiracy to deny equal protection. 22a As pointed out in Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872, 875 (7th Cir. 1971): - « « [c]ircumstantial evidence may provide adequate proof of conspiracy. The law does not demand proof that each conspira- tor knew the exact limits of the illegal plan or the identity of all participants therein. Thus, while the jury determined that the evidence did not support the finding of a beating, there was a determination of sufficient evidence to find a conspiracy to deprive equal protection. In such a situation, “it is the jury which ‘weighs the contradic- tory evidence and inferences’ and draws ‘the ultim te conclusion as to the facts'." (Citing Continental Ore Co. vy. Union Carbide and Carbon cCorp., 370 U.S. 690, 700-01 (1962) .] Hampton v. Hanrahan, 600 F.2d at 621. From a review of the facts and record in this . case, it was not unreasonable for this jury to reach the verdicts regarding Counts I and II. 23a Count III specifically alleged that the named officers conspired together with the purpose of impeding, obstructing, hin- dering and defeating the due course of jus- tice and to deprive Lenard of equal protec- tion of the law. This count is complemen- tary to Count V of the Complaint charging malicious prosecution. All parties agree that Count III goes to a conspiracy to mal- iciously prosecute Lenard for the traffic, liquor and gun violations. In light of our holding regarding the malicious prosecu- tion charge, infra, we must reverse the jury verdict on Count III for failure of an act implementing the conspiracy. In his Second Amended Complaint, Lenard charged in Count V that Argento, Sansone and Dreyer denied him his rights to be free from malicious prosecution under color of law in violation of §1983. This court has held that under a charge of a §1983 violation, the test is ". .. not 24a whether the arrest was constitutional or unconstitutional or whether it was made with or without probable cause, but whether the officer believed in good faith that the arrest was made with probable cause and whether that belief was reason- able," Brubaker v. King, 505 F.2d 534, 536-37 (7th Cir. 1974). See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972), on remand from 403 U.S. 388 (1971) .> See 5 Therefore, to prevail the police officer need not allege and prove probable cause in the consti- tutional sense. The standard governing police conduct is canposed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was law- ful, but also that his belief was reasonable. And so we hold that it is a defense to allege and prove good faith and reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted. We think, as a matter of constitutional law and as a matter of conmon sense, a law enforcement officer is entitled to this protection, 456 F.2d at 1348. \ 25a also Terket v. Lund, 623 F.2d 29, 31 (7th Cir. 1980) (Lack of probable cause and malice must be shown. Actual existence of probable cause is an absolute bar to a §1983 action); Boscarino v. Nelson, 518 F.2d 879 (7th Cir. 1975); Tritsis v. Backer, 501 F.2d 1021 (7th Cir. 1974). The question then is whether Officers Argento and Sansone arrested Lenard with good faith belief that there was probable cause for the arrest and whether that belief was reasonable. The Supreme Court has held that: [t]he quantum of information which constitutes probable cause- -evidence which would “warrant a man of reasonable caution in the belief" that a felony has been committed, Carroll Vv. United States, 267 U.S. 132, 162--must be measured by the facts of the particular case. Wong Sun v. United States, 371 U.S. 471, 479 (1962). This court has held in United States v. Ganter, 436 F.2d 364, 368 (7th Cir. 1970), that: 26a The determination of probable cause does not rest upon a tech- nical framework; instead it depends on the factual and prac- tical considerations of everyday life on which reasonable and pru- dent men, not legal technicians, act. Brinegar v. United States, 338 U.S. 160 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). "Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171 4 UL.Ed.2d 134 (1959); Thornton v. Buchmann, 392 F.2d 870, 872-73 (70h Cie. 1968). See also United States v. Watson, 587 F.2d 365, 368 (7th Cir. 1978). In examining the particulars of this case, it is undisputed that Lenard con- sumed four shots of vodka and five glasses of beer in a period of 5-6 hours while eat- ing nothing and that while driving his automobile he became involved in a minor auto accident. Both officers were called to the scene to investigate the accident when a dispute over fault arose. While the 27a offenses did not occur in the presence of the officers, they arrived upon the scene shortly thereafter. Testimony at trial indicated that Dreyer complained that Lenard has crossed the center line and struck her car. Upon the basis of this information and Lenard's appearance at the scene, it would be reasonable for the offi- cers to have a good faith belief that there existed probable cause to arrest Lenard on the traffic violations. While at the scene, Officer Argento, during a search of Lenard's car, discovered the firearm on the seat and the open can of beer. This Court does not lightly set aside this jury verdict but under the facts which were before the officers, we find that there was probable cause for Lenard's arrest for gun possession and liquor possession, and that it was reasonable for Argento and Sansone to have a good faith belief in the probable cause. We reverse the finding of malicious 28a prosecution and the finding of conspiracy to obstruct justice dependent upon this prosecution. b. Village of Melrose Park Count II of the Complaint alleged: 44. Defendant "Village" by its policy and custom of failing to properly screen, hire, train and supervise its police employees encouraged and_= san- ctioned the misbehavior com- plained of herein, with the know- ledge that it would deprive plaintiff of his rights, privi- leges and immunities, including Equal Protection of the Laws. (R. 95). Count III of the Complaint charged that it was the policy of the Village to encourage, sanction and "cover-up" acts of misconduct by its police employees. The count specifically alleges that the inter- nal investigation ordered by the Chief of Police was conducted solely to disprove Lenard's allegations and cover-up’ the police misconduct. Lenard further alleges that the policy and practice of the Village 29a to encourage, sanction and conceal unlaw- ful acts by its police employees was so broad and pervasive that it encompassed a large number of the police department including the Chief from the time of the incident to the present day. Liability of municipalities must be based on something more than a mere right to control employees. A “municipality cannot be held liable under §1983 on a res- pondeat superior theory." Monell v. New York City Department of Social Services, 436 U.S. 658, 691 (1977). As the Supreme Court held in Rizzo vy. Goode, 423 U.S. 362, 371 (1975), there must be an “affirma- tive link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by peti- tioners--express or otherwise--showing their authorisation Or approval of such misconduct." The Court in Rizzo further held that the "failure to act in the face 30a of a statistical pattern" of police mis- conduct was not sufficient to base liab- ility on the City of Philadelphia. 423 U.S. at 376. In Monell there was this same requirement of showing an implementation Or execution of a governmental policy before municipal liability could be imposed. The resulting case law from Rizzo finds ". . . that a failure of a supervi- sory official to supervise, control, or train the offending individual officers is not actionable absent a showing that the official either encourgaged the specific incident of misconduct or in some way directly participated in it." Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir. 1982), cert. denied, U.S. , 5) U.S.L.W. 3254 (U.S. Oct. 5, 1982). At a minimum, a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct 3la of the offending officers. Id. Inaction by the Village officials would also not attach liability. There can be liability only when there is an extremely high degree of culpability for inaction. The Second Circuit has held: - « « @ mere failure by’ the county to supervise its employees would not be sufficient to hold it liable under §1983. However, the county could be held liable if the failure to supervise or the lack of a proper training program was so severe as to reach the level of "gross negligence" or "deliberate indifference" to the deprivation of the plain- tiff's constitutional rights. Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980 (1979) (citation omitted). Only where there is a pattern of constitutionally offensive acts with failure to invoke remediai measures will there result in municipal liability for subsequent violations "if the supervi- sor's inaction amounts to deliberate indifference or tacit authorization of the 32a offensive acts." Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir. 1980). Until this present case, this court has not addressed these liability holdings of Monell or Rizzo, though they have been relied upon in Spriggs v. City of Chicago, 523 F.Supp. 138, 142 (N.D.I11. 1981) and Jordan v. City of Chicago, Department of Police, 505 F.Supp. 1 (N.D.I11. 1980). After an examination of approximately 2400 pages of transcript, we find insuffi- cient evidence to establish a failure by the Village to properly screen, hire, train and supervise its employees. Defen- dant Argento was a police officer for another community before his employment by Melrose Park. He and Sansone attended the Chicago Police Academy after employment. While Chief of Police Cimino had received no formal police training, he was a veteran of thirty years on the police force. Chief Cimino, during direct examination, testi- 33a fied that his officers did receive train- ing on physical restraint of prisoners. The identity of those officers was not pur- sued by Lenard's counsel. Several other officers, including defendants Culotta and Zito, testified but were not questioned by Lenard regarding their police training. The Village of Melrose Park did not have to establish at the time of this inci- dent a system of internal investigation nor written regulations regarding treat- ment of prisoners or the use of night- sticks. Directions, department policy and instructions were transmitted by word of mouth via meetings with staff officers every three months or general whole department meetings held twice a year. Nightsticks are issued to the officers only one week a year during a community feast and returned to the department at the end of that week. They were not standard uniform equipment requiring continual 34a restraining. Chief Cimino testified that on several occasions over eleven years the FBI had questioned officers regarding complaints but nothing ever became of those inci- dents. When a citizen complaint came to the attention of the Chief, he looked into the matter and talked the matter out with the officer and the complainant. For a small community, this personal approach to a community problem seems reasonable. The internal investigation regarding the Lenard incident was the first that Chief Cimino felt a need to order. The investi- gation was conducted by Officer Carpino and no disciplinary action resulted from this investigation. The investigation was still open at the time of trial. Lenard argues that the investigation was conducted to disprove his allegations and cover-up police misconduct. We found no evidence to support these allegations. 35a Officer Carpino did read at trial from a police report one line of which read "dis- prove allegation by the defendant and Lenard was charged with DWI" (Tr. 1295). However, when asked what was the purpose of the investigation, Carpino's reply was "to corroborate or contradict any of the evi- dence, whichever it may be, regardless to where it led." (Tr. 1297). In light of the standard outlined in Monell, supra, Rizzo, supra and Turpin, Supra, the review of the evidence in this case clearly did not reveal sufficient evidence that a reasonable man _ would return a contrary verdict regarding Count II or Count III in regard to the Village of Melrose Park. Most definitely the evi- dence did not rise to the standard of liability necessary under Rizzo and its progeny. Similarly, there was not sufficient evidence to show a conspiracy on the part 36a of the Village or its officials with the police officers or defendant Dreyer. The evidence did not show a custom or practice upon the part of the Village or through its officials with its police officers to deprive certain citizens of their consti- tutional rights through the use of physi- cal force or criminal prosecution. From a reading of Andrea Dreyer's deposition entered into the record at trial, she had four contacts with the Melrose Park police--the day of the accident, the following day when she filed a battery com- plaint and two telephone conversations after Lenard filed suit. The only possible conspiracy would have been in regard to the accident report and the battery charge. But there was no reasonable basis for the Village to have refused to pursue the com- plaints of a citizen relating to this acci- dent or the battery charge filed. MThere was no evidence to show that the Village 37a provoked the complaint filed by Dreyer. The presence of the Village attorney during an interview of Argento, Sansone and Culotta by State's Attorney Kling on February 14, 1977 and the Village attor- ney's restrictions upon that interview, appear to be no more than legal counseling of Village employees during an admittedly unofficial investigation rather than a cover-up. The Village cooperated with the State's Attorney's office providing state- ments in its possession. The officers even took Kling to the accident scene and reviewed the events with him. Before a complaint was filed by Lenard and on the basis of newspaper articles alone, Chief Cimino initiated the first internal inves- tigation of police officers in Melrose Park. While Lenard chooses to see conspi- racy in these activities, we see none. It should be pointed out that Lenard argues on appeal that the trial court erred 38a when it instructed the jury regarding good faith immunity defense accorded the Village. At the time this trial was con- ducted, municipalities possessed a quali- fied immunity under Monell v. New York, supra, through the trial court was aware of pending action in the Supreme Court on this issue. (Tr. 1739-40, 1743). Six weeks after the conclusion of the trial, the Supreme Court held municipalities have no immmunity from liability under 42 U.S.C. §1983 for their constitutional violations, and that they may not assert the good faith of their officers as a defense. Owens v. City of Independence, Mo., 445 U.S. 622 (1980). On appellate review, we would ordinarily be obligated to apply the law as of the time of the appeal versus as of the time of trial. National Labor Relations Board v. Food Store Employees Union, Local 347, 417 U.S. 1, 10 n.10 (1974); Bradley v. Richmond School _ Board, 416 U.S. 696 39a (1974); Rey v. Rutherford, 645 F.2d 880, 883 (10th Cir. 1981), but we need not address the issue of the jury instruction in this case. At the close of Lenard's case and at the close of all the evidence, the Village moved for a Directed Verdict which was reserved by the district court. The jury then returned verdicts in favor of the Village as to all alleged violations. Not- withstanding the jury verdict, after the close of the trial, the district court granted the Village's Motion for a Directed Verdict effective as of the close of the evidence. (Corrected Judgment was entered October 3, 1980 [R.277]).° Thus, 6 "Today the court has amended its Judgment dated March 19, 1980 which mistakenly entered judgment upon the jury's verdict in favor of the Village of Melrose Park and has entered judgment on its order granting the motion of the Village of Melrose Park for a directed verdict at the close of all the evidence." Footnote to Memorandum Opinion October 3, 1980. (R. 281). 40a the issue on appeal is not whether the trial court erred in granting a Directed Verdict in favor of the Village. The Directed Verdict took the judgment from the jury and made it that of the court. The standard for a Directed Verdict was recently stated by this Court in Richardson v. City of Indianapolis, 658 F.2d 494, 498 (7th Cir. 1981). It was stated that: - « « the trial judge must deter- mine whether the part with the burden of proof has produced suf- ficient evidence upon which a jury could properly proceed to a verdict, and that a mere scintilla of evidence will not suffice. Hohmann __v. Packard Instrument Co., 471 F.2d 815, 819 (7th Cir. 1973). Thus on appeal the party against whom a verdict has been directed has the onus of demonstrating the existence of a conflict in the evidence or the inferences to be drawn therefrom sufficient to justify submission of the question to the jury. Krivo Industrial Supply Co. v. National Distillers & Chemical Corp., 483 F.2d 1098, 1102 (5th £. 1973). 4la While it might be argued that the trial court could have been influenced in its judgment by the defense of qualified immu- nity, such an argument would not reverse the trial court's decision but only require a remand for a clarification of its decision. In the normal orderly and efficient administration of justice, priority consideration should be given to issues which will dispose of litigation over issues which, if sustained, will require remand and retrial. Otten v. Stonewall Insurance Co., 538 F.2d 210, 213 (8th Cir. 1976). From this record, we feel a remand is not necessary. Lenard argues the sufficiency of the evidence against the Village and requested a reversal of the verdict and judgment, but no post-trial motions, i.e., judgment n.O.v. or motion for retrial, were made. Such failure limits the relief available from the appellate court to that of 42a possibly ordering a new trial. Cone v. West Virginia Pulp and Paper Co., 330 U.S. 212 (1947); 5A Moore's Federal Practice 450.12 (2d ed. 1981). Defendants Argento and Sansone made several post-trial motions, including a motion for new trial. These motions were denied. From our review of the record, we fail to find sufficient evidence that would cause a reasonable man to return a contrary verdict. Smith v. J.C. Penney Co., 26) F.2d 218, 219 (7th Cir. 1958). We sustain the Directed Verdict for the Village of Melrose Park. II. Damages a. "Substantial" As previously discussed, all the defendants, the Village of Melrose Park, Argento, Sansone, Zito and Culotta, were found not guilty by the jury of the alleged beating of Lenard. The jury also found the Village of Melrose Park, Zito and Culotta not guilty under Counts II and III. The 43a jury did, however, find for Lenard against Argento and Sansone on both Counts II and III. The jury also found the two officers liable for malicious prosecution. When the trial court instructed the jury on the "damage" portion of the ver- dict, they were instructed that they could award “substantial damages" for both con- spiracies without proof of actual injury. If the jury found malicious or wanton con- duct in regard to the conspiracies, the jury was instructed that they could award punitive damages in addition to the award of "substantial damages." If the jury found that Lenard had sustained actual or compensatory damages from the malicious prosecution, the jury was instructed to award such damages to Lenard. If Lenard had not sustained any actual damages, they were instructed to award a nominal sum. They were also instructed that punitive damages could be awarded if they found by a 44a preponderance of the evidence "that the acts and conduct of the defendants toward the plaintiff were maliciously done." (R. ‘2382). The trial court went on to further explain the three types of damages upon which they had been instructed. Actual damages represented any direct out-of- pocket expenses Lenard sustained because of the defendants' acts and conduct. The trial court viewed "substantial damages" as a category presumed to flow from every conspiracy to obstruct justice or depriva- tion of equal protection. ’ It was seen as 7 "Substantial damages, as I have described in these instructions, are those which are presumed to flow fram every conspiracy to obstruct justice, and every conspiracy to deprive plaintiff of equal protection of the laws or of equal privilege or immunity under the laws. It is for you to deter- mine the amount of the substantial damages, as it is for you to determine the amount of the actual damages." (Tr. 2385). 45a a category separate from actual damages or punitive. This Court finds that it was error to instruct the jury as to a separate and distinct category of damages classi- fied as "Substantial damages." In Carey v. Piphus, 545 F.2d 30 (7th Cir. 1976), rev'd 435 U.S. 247 (1977), the Supreme Court reversed the position of this court regarding the awarding of damages to students who were suspended from public elementary and _ secondary schools without iain ws due process. We had held that the students were entitled to recover substantial non-punitive damages in the absence of proof of actual injury caused by the denial of procedural due process. The Supreme Court held "that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter Or punish malicious deprivations of rights.” 435 U.S. at 266. Carey was 46a limited to procedural due process viola- tions rather than the substantive consti- tutional violations of this case. When the Court overruled the holding in Carey, it refrained from overruling the line of cases upon which this court had based Carey. The Supreme Court held: . . ethe elements and prerequi- sites for recovery of damages appropriate to compensate injuries caused by the depriva- tion of one constitutional right are not necessarily appropriate to compensate injuries caused by the deprivation of another. AS we have said, supra, at 258-259, these issues must be considered with reference to the nature of the interests protected by the particular constitutional right in question. 435 U.S. at 264-65. As recently pointed out in this court by Justice Stewart, retired, sitting by designation in Owen v. Lash, 682 F.2d 648 (7th Cir. 1982), several courts have considered the question of awarding compensatory damages for substan- tive constitutional violations in the absence of consequential injury. Several 47a of the courts, under the circumstances of their particular case and the nature of the constitutional violations, found damages could "be presumed where there is an infringement of a substantive constitu- tional right." Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1272 (8th Citas BPCL) o See also Owen v. Lash, 682 F.2d at 657-59. Examining the circum- stances of this case and the substantive constitutional issues, it was proper for the jury to consider and award damages for these violations in the absence of dis- cernible consequential injuries. There is no question that Lenard is entitled to a damage award for a violation of 42 U.S.C. §1985(3). Such a right to damages is provided for within §1985(3). This court, however, does not find that there is a separate category of damages known as "Substantial damages" which flow from civil rights violations. While it is 48a recognized that courts must- exercise creativity in fashioning remedies for vio- lations of constitutional rights, we are mindful of the Supreme Court's instruction in Carey that: - « « the rules governing compen- sation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the parti- cular right in question--just as the common law rules of damages themselves were defined by the interests protected in the various branches of tort law. 435 U.S. 247, 259 (1977). While the Court in Carey made several references to "sub- Stantial damages" or "substantial non- punitive damages, "® it is our reading that the word "substantial" was used as an adjective modifying the noun "damages" and not as a descriptive phrase alluding to a category of damages. Classification of damages as actual or compensatory, nominal and punitive are terms of art which have a substantive meaning in legal jurispru- . See 435 U.S. at 252, 253, 254, 261, 266. 49a dence. "Substantial" is an adjective modifying damages and conveys no legal meaning. Rather, it gives a quantitative character to the damages. We cannot but feel that the repeated use of the phrase "substantial damages" by the district court (11 times, plus inclu- sion as a category in the verdict form) in its instructions to the jury and the instruction that such damages could be awarded without proof of actual injury greatly influenced this large verdict. "Repetitious instructions which place undue emphasis on matters favorable to either side constitute reversible error." Flentie v. American Community Stores, Corp., 389 F.2d 80, 83 (8th Cir. 1968). In light of the erroneous use of the term "substantial" in the verdict form and the instructions in keeping with that form, we reverse and remand this case for retrial on the issue of damages. 50a b. Punitive Additionally the award of $150,000 and $75,000 in punitive damages against Argento and Sansone, respectively, without a showing as to which claim, the con- Sspiracies or the malicious prosecution, the award as assigned or apportioned requires remand in this instance. Federal law governs the right to punitive damages in civil rights violations. Basista v. Weir, 340 F.2d 74 (3d Cir. 1965). TO warrant an award of punitive damages, it must be demonstrated that "there was a degree of willful and wanton disregard of plaintiff's right not to suffer this sort of discrimination." Seaton v. Sky Realty Co., Inc., 491 F.2d 634, 638 (7th Cir. 1974). Because of our holding on the issue of malicious prosecution, supra, and the single sum award of punitive damages, we cannot apportion the award among. the 5la counts of the complaint. Punitive damages may be awarded to punish a defendant for his outrageous conduct but also to deter the defendant and others from engaging in the same or similar conduct. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974); see also City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981); W. Prosser, Law of Torts, §2 at p.9 (4th ed. 1971). Damages should not go beyond deter- rence and become a windfall. c. Damage evidence that can be presented Several issues were raised on appeal regarding damages and evidence regarding damages which we will consider in order to guide the district court in the retrial. The district court below held that no evidence in the damage portion of the trial could be introduced regarding the "beat- ing" as the jury found no "actual" beating had occurred. The district court instructed Lenard's counsel that: 52a THE COURT: That is not what the Court is saying. I am saying any evidence that flows from the damages resulting from Mr. Lenard being maliciously prose- cuted or conspired against may come in; but on the 1983 charge, of having been beaten or the use of excessive force and depriva- tion of his constitutional rights, that I am precluding. The Court feels it has no choice, in light of the jury's verdict. If you feel I read the jury's verdict incorrectly, then, of course, you make the exception you have and call for a mistrial. But I feel there is no other choice. 2 ¢ @ THE COURT: So the record is clear, Mr. Bertucci, there can be no reference to a cover-up of a beating which I state for the record the Court has concluded that the verdict has been returned that that proof has not been established by a prepon- derance of the evidence. MR. BERTUCCI: What I want to know, your Honor-- THE COURT: You are limited in that, that is correct. MR. BERTUCCI: But what can I say the conspiracy was? 53a THE COURT: Whatever conduct, other than the beating, which was alleged to have occurred in this case you feel occurred, any con- duct other than that, whether it relates to the malicious prosecu- tion or any other action which violated the constitutional rights of the plaintiff may be addressed in your argument, and you may ask _ for substantial damages and punitive damages, with regard to that. But there cannot be any reference to the beating. So that the record is clear, I am precluding that, so if you have any comment on that, I certainly would hear you. (Tr. 2280, 2345-46). Counsel made offers of proof of the physical injuries sus- tained, the subsequent surgeries, the con- sequential monetary losses, and the pain and suffering caused by the incident. No damage evidence went to the jury except the arguments of counsel. ? 9 This was a bifurcated trial lasting over 5 1/2 weeks with the same jury determining liability as well as damages. 54a While the district court was correct in holding that no evidence of damage from an alleged "beating" could be presented to the jury because of its prior decision, the district court erroneously prevented the presentation of any of the proffered evi- dence of injuries, medical treatment and losses caused by those injuries sustained while in police custody as they relate to the conspiracy counts. In other words, any evidence of injuries proved incurred from the time shortly after the accident to Lenard's release to his family late that evening should be admitted as they relate to being sustained while in police cus- tody. These injuries cannot be presented Or argued, however, as being the result of a beating but presented as_ injuries incurred somehow while under police super- vision and protection. It has been recognized that prisoners are entitled to protection from excessive 55a , use of force by police officers. Clark v. Ziedonis, 513 F.2d 79 (7th Cir. 1975). This court has held that where there is a showing of deliberate deprivation of con- Sstitutional rights while confined, a prisoner is entitled to damages. Black v. Brown, 513 F.2d 652 (7th Cir. 1975); Little v. Walker, 552 F.2d 193, 197-98 (7th Cir. 1977). On reconsideration of the damages On remand, evidence relating to the eye injury and the shoulder injury, the cor- rective surgeries performed, the costs and monetary losses from these injuries and the prognosis for recovery should be pre- sented to the jury. Damages may also be considered and awarded for constitutional deprivations. As we held in Hostrop v. Board of Junior College District No. 515, 523 F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S. 963 (1976), the trial court should consider, when making an award for constitutional 56a violations, "the nature of the constitu- tional deprivation and the magnitude of the mental distress and _ humiliation suffered by the plaintiff, as well as any other injury caused as a result of being deprived of federally protected rights..." Id. at 580. As recently pointed out in this court by Justice Stewart in Owen v. Lash, Supra, several courts "have awarded significant damages to compensate for the deprivation of a con- stitutional right despite the absence of proof on consequential injury." 682 F.2d at 658. As ’1is court pointed out in Hostrop: Although the amount of damages for such an injury cannot be determined by reference to any objective standard, recovery of non-punitive damages for deprivation of intangible rights for which no pecuniary loss can be shown is not without precedent. Courts have traditionally assessed such damages for tortious injury. Examples in civil rights litigation include the awarding of damages for the depriva- tion of voting rights, for the abridg- 57a ment of equal opportunities to hous- ing, for illegal assets, and for vio- lation of the right against unlawful searches and seizures. 523 F.2d at 579 (cites omitted). See also Seaton v. Sky Realty Co., Inc., 491 F.2d 634 (7th Cir. 1974); Corriz v. Naranjo, 667 F.2d 892 (10th Cir. 1982), appeal dis- missed per S.Ct. Rule 53, 51 U.S.L.W. 3150 (Aug. 19, 1982). Upon retrial for damages, Lenard should be allowed to argue damages flowing from the nature of the constitutional deprivation, the mental distress, humili- ation or any other injury, if any, caused as the result of the violation of his con- stitutional rights. d. Duplicative Award Argento and Sansone argue on appeal that any damage award for a civil con- spiracy would be a duplicative damage award for the act which implemented the conspiracy. They argue that the damages 58a for the conspiracy. They argue that the damages for the conspiracy counts cannot represent the "beating" but must relate to the conspiracy to prosecute Lenard. The damages for the act of prosecution, they contend, were compensated under the instructions related to the malicious pro- secution count and cannot be compensated again under the conspiracy count. However, the instructions for the con- spiracy damages were not isolated to a par- ticular event but rather related to the deprivation of rights of "due course of justice" and "equal protection under the 10 An award under §1985 would not be law." duplicative of the prosecution or the beating but, in this case, go to the find- ing of deprivation of civil rights while in police custody. See Corriz v. Naranjo, 667 F.2d at 896-898. While courts have held that an award of damages for a state tort 10 "Where a plaintiff has proven a conspiracy (continued on next page) 59a claim joined with a federal civil rights action would be duplicative when there is an adequate state tort remedy, Clapper v. Flynn, 605 F.2d 519, 529 (10th Cir. 1979), there are in this case, only strictly federal civil rights claims. As pre- viously indicated, §1985 provides damages for "injury or deprivation." MThus, it is possible under §1985 to award damages for the act which effectuated the conspiracies and for the conspiracy which caused the deprivation. See Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963). (continued) to obstruct justice and a conspiracy to deprive him of equal protection of the laws, or of equal privileges and immunities under the law, he is entitled to recover without proving any actual injury, substantial damages." (Tr. 2381), 60a In summary, upon remand for retrial on damages, we direct that there is no cate- gory of damages called "substantial," that the evidence of bodily injury sustained by Lenard during his police custody and the related treatments, costs and prognosis shall be considered as damages under §1985 (but they should not be couched as beating injuries), and that any evidence of injuries, i.e., mental distress or humil- iation, sustained by Lenard as a result of the deprivation of his federal protected rights should be presented to the jury. However, the awards should not be duplica- tive of any other compensated injuries. Because of our finding of probable cause and reversal of the malicious prosecution count, no damages under Count III shall be considered on remand, III. Miscellaneous a. Omission of "beating" on the verdict form 6la 1964). See also Alloy International Co. v. Hoover=-NSK Bearing Co., 635 F.2d 1222 (7th Cir. 1980). In this instance, the trial court adopted the phraseology of §1983 and then proceeded to break down the elements which Lenard had to prove by a prepon- derance of the evidence. In doing so, the charge read: In order to prove his claim that defendants Argento, Sansone, Zito and Culotta, or some of them, deprived him of any of his rights, privileges or immunities secured by the Constitution [sic] and laws, the burden is upon the plaintiff to establish by a pre- ponderance of the evidence each of the following propositions: "One, that these defen- dants, or some of them, know- ingly beat, bruised and wounded plaintiff about the face, head and body = as alleged. "Two, that these defendants or some of them then and there acted under color of some law of the State of Illinois or some ordinance of the Village of Melrose Park. 63a Lenard argues that the omission of "battery," "beating," or “excessive force" in the verdict forms submitted to the jury was confusing and misleading. He contends that the general phrase regarding depriva- tion of "his rights, privileges or immuni- ties" failed to inform the jury that these phrases referred to the excessive use of force. He further contends that the jury could have been confused because the ver- dict form was captioned with the Village of Melrose Park as well as the other named police defendants when in fact the Village was not charged under Count I of the com- plaint. In reviewing the verdict forms, we must look at the instructions to the jury which complement the forms. Instructions should not be isolated in review but the court should look at the total scheme. Dreckman v. Flores, 331 F.2d 221 (7th Cir. 62a "Three, that the acts and conduct of these defendants, Or some of them, deprived the plaintiff of some of his federal constitutional rights, and "Four, that the acts and conduct of these defendants Or some of them were the pro- ximate cause of injuries and consequent damage to- the plaintiff." (Tr. 2198-99). Thus, looking at’ the instruction and the accompanying verdict form, it is clear that the deprivation of "privilege and immunities" went to the alleged beating "of the face, head and body" of Lenard. The exact wording of an instruction is within the discretion of the court and will not be overturned unless there was an abuse of that discretion. See Emery Vv. Northern Pacific Railroad Company, 407 F.2d 109 (8th Cir. 1969). It is clear from the instruction that the ver- dict form related to the "beating." While the verdict form was captioned with the Village's name, the instruction 64a Clearly indicated the named police defen- dants. "(O]nly when there is a complete absence of positive fact to support conclusions reached (by the jury) does a reversible error appear." Almendarez v. Atchison, Topeka and Santa Fe Railway Co., 426 F.2d 1095, 1099 (5th Cir. 1970), citing Lavender v. Kurn, 327 U.S. 645, 653 (1946). We find no prejudicial error in the form caption or the omission of "beating" in the verdict form itself. b. Jury Instructions The defendants Argento and Sansone argue that the jury instruction regarding the conspiracy to obstruct justice was overly broad and led the jury to believe that if the defendants were guilty of mali- cious prosecution they would be similarly guilty on the conspiracy charge. A similar argument was made regarding the equal pro- tection instruction. We cannot agree. 65a An examination of the record clearly indicates that the trial court properly instructed the jury on the elements of the conspiracy to obstruct justice and the elements of the conspiracy to deprive equal protection. These elements were broken down numerically and relevant terms were defined for the jury. The instruction regarding the malicious prosecution Clearly went to the initiation and prose- cution of the state charges and not to any civil rights deprivations.! As the trial il "In order to prove his claim that defendants Argento and Sansone, or one of them, maliciously prosecuted him for the offenses of no valid dri- ver's license, resisting arrest, unlawful use of weapons, no firearm owner's identification card, improper lane usage, driving under the influence of alcohol and failure to reduce speed to avoid an accident, or sane of them, the burden is upon the plaintiff to establish by a preponderance of the evidence each of the following propositions: One, that a criminal proceeding was carmenced against the plaintiff. Two, that defendants Argento and Sansone, or one of them, carmenced the criminal proceeding against the plaintif*. (continued on next page) 66a court had done in the other Counts, it enumerated the elements of the cause of action which clearly delineated to the jury that the malicious prosecution went to the criminal charges and not to any police misconduct. Inasmuch as the jury was properly instructed as to the issues before them, given an understanding of those issues and charged with the duty to determine those issues, we find no pre- judicial error to Argento and Sansone. As this court repeated in Alloy International Co. v. Hoover-NSK Bearing Co.,: ‘(eont inued) Three, that the plaintiff was found not guilty of one or more of the charges. Four, that a criminal proceeding was carmenced by defendants Argento and Sansone, or one of them, without probable cause. Five, that defendants Argento and Sansone, or one of them, acted with malice and, Six, that the defendant was damaged by the criminal proceeding." (Tr. 2209). 67a The test, then, is not what mean- ing the ingenuity of counsel can at leisure attribute to’ the instructions, but how and in what sense, under the evidence before them and the circumstances of the trial, ordinary men acting as jurors will understand the instructions. 635 F.2d at 1228, (citations omitted). Argento and Sansone contend that the instructions are overly broad because any misconduct by the defendants would create liability for conspiracy. As previously indicated, any act in the furtherance of or implementation of the conspiracy agreement creates the liability. Thus, if the jury found an agreement between Argento and Sansone and an act in the furtherance of that agreement to hinder the due course of justice or to dery equal protection under the law, the civil conspiracy is trig- gered. 2? It is within the dominion of the 12 "So where the evidence in the case shows such a canmmon plan or arrangement between two or (continued on next page) 68a jury to decide upon the evidence what act of the defendants supported the conspiracy not the instructing court. This jury was not set loose in a vague and cloudy field of legal concepts as charged. It must be pointed out, however, that since this court has found probable cause to arrest Lenard, the prosecution of those charges was not malicious, and the conspiracy count must fail. In light of our finding of probable cause to effect the arrest of Lenard and reversal of the jury's finding on the malicious prosecution, the challenged instructions regarding the malicious pro- (continued) more persons, evidence as to an act done or state- ment made by one such person is admissible against all, provided that the act be knowingly done or the statement be knowingly made during the contin- uance of the carmon plan or arrangement, and in furtherance of same intended object or purpose of the conmon plan." (Tr. 2204). 69a secution need not be discussed. Finally, Argento and Sansone challenge the instruc- tion of the trial court as to the Thirteenth Amendment and prejudicial introduction of "slavery" and "involuntary servitude” in this case. The defendants have, however, overlooked the fact that 42 U.S.C. §1981 et seq. has its constitu- tional derivation from the Thirteenth and Fourteenth Amendments. As the Supreme Court held in Griffin: By the Thirteenth Amendment, we committed ourselves as a Nation to the proposition that the former slaves and their des- cendants should be forever free, To keep that promise, "Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective leg- islation." Jones v. Alfred H,. Mayer Co., supra, at 440. We can only conclude that Congress was wholly within its powers under §2 of the Thirteenth Amendment in Creating a statutory cause of action for Negro citizens who have been the victims of con- 70a spiratorial, racially discrimina- tory private action aimed at depriving them of the _ basic rights that the law secures to all free men. 403 U.S. at 105. Examining all the instructions as a whole, we do not find the objected to instructions overly broad, confusing or prejudicial. c. Motions in Limine The trial court granted a Motion in Limine barring the introduction of evi- dence of a prior arrest and conviction of Lenard on voluntary manslaughter on March 23, 1953 in Arkansas. He was sixteen years old at the time, but there is no indication on the judgment of conviction (Exhibit A at R. 285) whether or not he was adjudicated as a juvenile. Argento and Sansone contend the granting of the Motion was prejudical error as this conviction went to the issue of Lenard's violent tendencies and anti- 7la pathy to the law. It is contended that Lenard presented himself as a lifetime law abiding citizen and the defense was pre- vented from impeaching his credibility through the introduction of three prior arrests and one conviction. +3 While 13 Lenard was arrested for premeditated murder but pled guilty to voluntary manslaughter on March 23, 1953. He was apparently arrested in 1960 and resisted arrest in July, 1968. (Offer of proof Tr. 1648-49). Those arrests were not prosecuted. It is unclear from the record, as several docu- ments are missing, but there is passing reference to a gambling conviction but it is not further identified. The trial court granted Lenard's Motion in Limine prohibiting reference to the prior gambling conviction and the prior man- Slaughter conviction for impeachment purposes. (Tr. Vol. Ap. 7). The trial court did not, how- ever, outline on the record the factors considered consistent with this court's standard in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.), cert. denied, 429 U.S. 1025 (1976). 72a Argento and Sansone argue that this evi- dence went to the issues in the malicious prosecution count, it could have related to the other counts as well. Federal Rules of Evidence 60914 per- 14 Federal Rules of Evidence 609 provides: (a) General rule. For the purpose of attack- ing the credibility of a witness, evidence that he has been convicted of a crime shall be admit- ted if elicited fram him or established by pub- lie record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness fran the confinement imposed for that convic- tion, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction sup- ported by specific facts and circumstances sub- stantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admiss- ible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. 73a mits the admission of evidence of the prior criminal conviction of a witness to attack his credibility if the probative value of the evidence outweighs its prejudicial effect. However, convictions more than ten years old are inadmissible "unless the court determines, in the interest of jus- tice" that the probative value outweighs the prejudicial effect. Id. In addition, juvenile adjudications are similarly inadmissible. In this instance, the con- viction was twenty-four years old occurr- ing when Lenard was a juvenile. ~ (eont inued) * * * (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admiss- ible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. Federal Rules of Evidence 609. 74a This court has always carefully con- sidered the prejudicial impact of prior convictions and has recommended a standard for the trial courts to guide them in their discretionary function. See, United States v. Mahone, 537 F.2d 922 (7th Cir.), cert. denied, 429 U.S. 1025 (1976). The determination whether the evidence of a prior conviction is more probative than prejudicial is within the trial court's discretion. The House Committee on the Judiciary, when considering the proposed Federal Rules of Evidence, recommended that convictions older than ten years 15 The should be totally inadmissible. Senate's recommendation was that of admis- sion of the conviction on only very rare 15 H.R. Rp. No. 650, 93rd Cong. Ist Sess., reprinted in, 1974 U.S. Code Cong. & Ad. News pp. 7051, 7085. 75a 16 The pre- and exceptional circumstances. sent rule is a version of the Senate recommendation, The Sixth Circuit in United States v. Sims, 588 F.2d 1145, 1150 (6th Cir. 1978) held that "609(b) creates, in effect, a rebuttable presumption that convictions over ten years old are more prejudicial than helpful and should be excluded." Lenard's conviction was suf- ficiently remote in time, under possible juvenile adjudication circumstances, and unrelated to his truth telling capabil- ities or the events in this action. It was not error for the trial court to determine that admission would be highly prejudicial and not in the interest of justice. Lenard contends the trial court erred when it granted the Motion in Limine of 16 S. Rep. No. 1277, 93rd Cong. 2d Sess., reprinted in, 1974 U.S. Code Cong. & Ad. News pp. 7951, 7062. 76a Sansone and Zito regarding their guilty pleas to bribery charges and thirty day suspensions which occurred in August, 1978.2? It is argued the Village's treat- ment of these officers on the bribery charge supported the allegations of the Village condoning police misconduct and that such evidence is admissible under Federal Rules of Evidence 404(b) , 28 17 On August 30, 1978, Sansone and Zito entered guilty pleas to soliciting and accepting a $100.00 bribe on June 24, 1978. 18 Federal Rules of Evidence 404(b) provides: (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs , or acts is not admiss- ible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other pur- poses, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 77a Generally evidence of other criminal activities is inadmissible unless the evi- dence of the other crimes or misconduct is relevant. It would be relevant if it bore upon the intent, knowledge, or absence of mistake or accident of the defendant. United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), cert. denied, 429 U.S. 818 (1976). See also, United States v. Jones, 438 F.2d 461, 465 (7th Cir. 1971); United States v. Marine, 413 F.2d 214, 216-17 (7th Cir. 1969), cert. denied, 396 U.S. 1001 (1970). The admissibility of other criminal conduct is within the dis- cretion of the trial court. Glasser v. United States, 315 U.S. 60 (1942); United States v. Fierson, 4]9 F.2d 1020 (7th Cir. 1969); United States v. Graviec, 563 F.2d 313 (7th Cie. 1977). The bribery admissions of Sansone and zito do not relate to any charge against 78a them in this civil action. The bribery and suspensions do not demonstrate any intent Or knowledge which correlates to any civil rights deprivation or physical abuse. While both charges might demonstrate police misconduct, the admission of the subsequent suspensions would have to be weighed by the trial court for its pre- judicial versus probative value. In addi- tion, Lenard is not seeking to use the evidence against Sansone and Zito but against the Village to prove its intent to condone misconduct. Thus, Lenard is not seeking to use the evidence to show the intent of Sansone and Zito to commit police misconduct but rather to impose a com- pletely different intent upon the Village. The proposed use of this evidence is com- pletely outside the exceptions of 404(b). The suspensions are unrelated to any facts at issue in this case and do not have "any tendency to make the evidence of any fact 79a that is of consequence to the determina- tion of the action more probable or less probable than it would be without the evi- dence." Federal Rules of Evidence 401. The trial court properly acted within its discretion to deny the admission of the suspensions, Lenard also argues the trial court erred when it granted the Motion in Limine in respect to the police officer defen- dants' assertion of their Fifth Amendment privileges to internal investigators and the Cook County Grand Jury investigating the incident. (The officers did testify two weeks later). Lenard argues that the Village's failure to discipline the officers for invocation of their Fifth Amendment privilege was further evidence of a Village cover-up or condoning of mis- conduct. The Supreme Court held in Gardner v. Broderick, 392 U.S. 273 (1968), how- 80a ever, that a police officer cannot be dis- ciplined for invocation of his Fifth Amendment privilege nor his failure to sign a waiver of immunity with respect to any testimony when the officer is called before a grand jury investigating criminal conduct with which he may be involved. Thus, the Village was prohibited from dis- ciplining the officers under Gardner. Failure to discipline could not then be part of a cover-up. The failure of the Village to reinterview the defendants for its own internal investigation after their waiver of privilege before the Grand Jury fails to demonstrate an intention to cover-up, especially when Sansone and Zito were suspended a year and half later. The trial court acted within its discretion in granting the Motion. 8la dad. Statements made by counsel While this Court appreciates the advo- cacy displayed by these attorneys on behalf of their clients, there were times during the course of reviewing the briefs and records of this case when it wondered whether these attorneys were in the same courtroom hearing the same case. While florid language and zealous advocacy dis- play commitment to their respective causes, exaggerations and personal attacks do not factually present issues before an appellate court. Defendants Argento and Sansone contend on appeal that several statements made by Lenard's counsel, including statements regarding religious affiliations and the veracity of Sansone in his testimony, amounted to reversible error. Personal observations, evaluations and recommenda- tions are not part of the role of trial 82a counsel but in the context of all the evidence and the clear cautionary instruc- tions of the trial court regarding the arguments of counsel, these statements do not rise to the level of reversible error. We find any error in statements made by either cou [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0793%3A1. Public record. Not legal advice.