IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



JACQUELINE K. BUSCH and LARRY BUSCH,
Plaintiffs,

No. C 00-4044-MWB

vs.



PRELIMINARY AND FINAL INSTRUCTIONS

TO THE JURY

CITY OF ANTHON, IOWA, RON HOUGHTALING, RUTH GROTH, HELEN PULLIAM, DOUG BOETGER, CHRISTINE GARTHRIGHT, GREGORY LOGAN, and ANGIE JORGENSON,
Defendants.

____________________



TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - DUTY OF JURORS 2

NO. 3 - BURDEN OF PROOF 3

NO. 4 - ORDER OF TRIAL 4

NO. 5 - DEFINITION OF EVIDENCE 5

NO. 6 - CREDIBILITY OF WITNESSES 6

NO. 7 - STIPULATED FACTS 7

NO. 8 - DEPOSITIONS 8

NO. 9 - INTERROGATORIES 9

NO. 10 - OBJECTIONS 10

NO. 11 - BENCH CONFERENCES 11

NO. 12 - NOTE-TAKING 12

NO. 13 - CONDUCT OF JURORS DURING TRIAL 13

FINAL INSTRUCTIONS 15

NO. 1 - INTRODUCTION 15

NO. 2 - IMPEACHMENT OF WITNESSES 16

NO. 3 - THE PLAINTIFF'S CLAIMS 17

NO. 4 - REASONABLE BELIEF 18

NO. 5 - PROBABLE CAUSE 19

NO. 6 - PROXIMATE CAUSE 20

NO. 7 - INVASION OF PRIVACY 21

NO. 8 - FALSE ARREST AND IMPRISONMENT 23

NO. 9 - ASSAULT AND BATTERY 26

NO. 10 - MALICIOUS PROSECUTION 29

NO. 11 - ABUSE OF PROCESS 31

NO. 12 - LIABILITY OF THE CITY 33

NO. 13 - DAMAGES--IN GENERAL 34

NO. 14 - DAMAGES--SPECIFIC ITEMS 36

NO. 15 - DAMAGES--SPECIFIC LIMITATIONS 38

NO. 16 - DELIBERATIONS 39



VERDICT FORM

PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



Members of the jury, before the lawyers make their opening statements, I give you these preliminary instructions to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written final instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.



PRELIMINARY INSTRUCTION NO. 2 - DUTY OF JURORS



It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are and then apply those facts to the law which I will give you in these preliminary instructions, any instructions given during the trial, and in the final instructions at the conclusion of the case. You will then deliberate and reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

You have been chosen and sworn as jurors in this case to try the issues of fact presented by the parties. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I will give it to you.

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. In this case, the individual defendants are city and county officials, and one of the defendants, the City of Anthon, is a municipality. The mere fact that a party is a city or county official or a municipality does not mean that such a party is entitled to any greater or lesser consideration by you. All persons, including the individual plaintiffs, the individual defendants, and the City of Anthon, stand equal before the law, and are entitled to the same fair consideration by you. When a municipality such as the City of Anthon is involved, of course, it may act only through natural persons as its agents or employees.

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

PRELIMINARY INSTRUCTION NO. 3 - BURDEN OF PROOF



In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim or affirmative defense depends upon that fact. That party with the burden must prove facts by the "greater weight of the evidence." To prove something "by the greater weight of the evidence" means to prove that it is more likely true than not true. The "greater weight of the evidence" is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, you find that the evidence is equally balanced, then you cannot find that the issue has been proved.

The "greater weight of the evidence" is not necessarily determined by the greater number of witnesses or exhibits a party has presented. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony. This is so, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.

You may have heard of the term "proof beyond a reasonable doubt." That is a stricter standard, which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.

PRELIMINARY INSTRUCTION NO. 4 - ORDER OF TRIAL



The trial will proceed as follows:

After these preliminary instructions, the plaintiffs' attorney may make an opening statement. Next, the lawyers for the defendants may each make an opening statement. An opening statement is not evidence, but is simply a summary of what the lawyer expects the evidence to be.

The plaintiffs will then present evidence and call witnesses and the lawyers for the defendants may cross-examine them. Following the plaintiffs' case, the defendants may present evidence and call witnesses and the lawyer for the plaintiffs may cross-examine them.

After the evidence is concluded, I will give you most of the final instructions. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you the remaining final instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 5 - DEFINITION OF EVIDENCE



Evidence is:

1. Testimony.

2. Exhibits I admit into evidence.

3. Stipulations, which are agreements between the parties.

Evidence may be "direct" or "circumstantial." The law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

A particular item of evidence is sometimes admitted only for a limited purpose, and not for any other purpose. I will tell you if that happens, and instruct you on the purposes for which the item can and cannot be used.

The fact that an exhibit may be shown to you does not mean that you must rely on it more than you rely on other evidence.

The following are not evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you saw or heard about this case outside the courtroom.

The weight of the evidence is not determined by the number of witnesses testifying as to the existence or non-existence of any fact. Also, the weight of the evidence should not be determined merely by the number or volume of documents or exhibits. The weight of evidence depends on its quality, not quantity. The quality and weight of the evidence are for you to decide.

PRELIMINARY INSTRUCTION NO. 6 - CREDIBILITY OF WITNESSES



In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, only part of it, or none of it.

In deciding what testimony to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the witness's drug or alcohol use or addiction, if any, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe. In deciding whether or not to believe a witness, keep in mind that people sometimes see or hear things differently and sometimes forget things. You need to consider, therefore, whether a contradiction results from an innocent misrecollection or sincere lapse of memory, or instead from an intentional falsehood or pretended lapse of memory.

PRELIMINARY INSTRUCTION NO. 7 - STIPULATED FACTS



The plaintiffs and the defendants have agreed or "stipulated" to certain facts and have reduced these facts to a written agreement or stipulation. Any counsel may, throughout the trial, read to you all or a portion of the stipulated facts. You should treat these stipulated facts as having been proved.

PRELIMINARY INSTRUCTION NO. 8 - DEPOSITIONS



Certain testimony from a deposition may be read into evidence. A deposition is testimony taken under oath before the trial and preserved in writing. Consider that testimony as if it had been given in court.

PRELIMINARY INSTRUCTION NO. 9 - INTERROGATORIES



During this trial, you may hear the word "interrogatory." An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. Consider interrogatories and the answers to them as if the questions had been asked and answered here in court.

PRELIMINARY INSTRUCTION NO. 10 - OBJECTIONS



The lawyers may make objections and motions during the trial that I must rule upon. If I sustain an objection to a question before it is answered, do not draw any inferences or conclusions from the question itself. Also, the lawyers have a duty to object to testimony or other evidence that they believe is not properly admissible. Do not hold it against a lawyer or the party the lawyer represents because the lawyer has made objections.

PRELIMINARY INSTRUCTION NO. 11 - BENCH CONFERENCES



During the trial it may be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference here while the jury is present in the courtroom, or by calling a recess. Please be patient, because while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, to avoid confusion and error, and to save your valuable time. We will, of course, do what we can to keep the number and length of these conferences to a minimum.

PRELIMINARY INSTRUCTION NO. 12 - NOTE-TAKING



If you want to take notes during the trial, you may, but be sure that your note-taking does not interfere with listening to and considering all the evidence. If you choose not to take notes, remember that it is your own individual responsibility to listen carefully to the evidence.

Notes you take during the trial are not necessarily more reliable than your memory or another juror's memory. Therefore, you should not be overly influenced by the notes.

If you take notes, do not discuss them with anyone before you begin your deliberations. At the end of each day, please leave your notes on your chair. At the end of the trial, you may take your notes out of the notebook and keep them, or leave them, and we will destroy them. No one will read the notes, either during or after the trial.

You will notice that we have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your verdict.

PRELIMINARY INSTRUCTION NO. 13 - CONDUCT OF JURORS

DURING TRIAL





You will not be required to remain together while court is in recess. However, to insure fairness, you as jurors must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers, or witnesses involved in this case--you should not even pass the time of day with any of them. It is important that you not only do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the case sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case you will know more about the matter than anyone will learn through the news media.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

Eighth, if at anytime during the trial you have a problem that you would like to bring to my attention, or if you feel ill or need to go to the restroom, please send a note to the Court Security Officer, who will deliver it to me. I want you to be comfortable, so please do not hesitate to inform me of any problem.

DATED this 20th day of May, 2002.



FINAL INSTRUCTION NO. 1 - INTRODUCTION



Members of the jury, the written instructions I gave you at the beginning of the trial and the oral instructions I gave you during the trial remain in effect. I now give you some additional instructions.

The instructions I am about to give you, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. All instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

In considering these instructions, the order in which they are given is not important.

Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.

FINAL INSTRUCTION NO. 2 - IMPEACHMENT OF WITNESSES



In Preliminary Instruction No. 6, I instructed you on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached."

A witness may be discredited or impeached by contradictory evidence; by a showing that the witness testified falsely concerning a material matter; or by evidence that at some other time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony. If earlier statements of a witness were admitted into evidence, they were not admitted to prove that the contents of those statements were true. Instead, you may consider those earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness, and, therefore, whether they affect the credibility of that witness.

If you believe that a witness has been discredited or impeached, it is your exclusive right to give that witness's testimony whatever weight you think it deserves.

FINAL INSTRUCTION NO. 3 - THE PLAINTIFF'S CLAIMS





As I explained in a statement of the case during jury selection, plaintiff Jackie Busch asserts various claims arising out of a series of disputes she had with the City and County Defendants in 1998. Each claim consists of "elements," which Jackie Busch must prove by the greater weight of the evidence if she is to win on that claim. I will explain the "elements" of Jackie Busch's claims in the following instructions.

I previously identified the claim or claims allegedly arising out of each incident. However, Jackie Busch sometimes alleges that the same kind of claim--such as "assault and battery" or "false arrest and imprisonment"--arose from more than one incident. Therefore, I will now instruct you on the "elements" of each kind of claim.

Also, Jackie Busch's claims are based on federal law, that is, the United States Constitution, Iowa law, or both federal and Iowa law. I will begin my explanation of the various kinds of claims with the claims alleging violations of federal law or both federal and Iowa law, not because they are more "important," but just because this is a federal court. I will then explain the claims alleging violations of state law. Remember that the claims are equally important and that the parties are entitled to your separate consideration of each claim against each defendant.

FINAL INSTRUCTION NO. 4 - REASONABLE BELIEF





The elements of some of the claims and defenses in this lawsuit require you to determine whether a plaintiff or a defendant acted on or had a "reasonable belief" about something. A person had a "reasonable belief" if that person actually believed the thing in question and an average reasonable person in his or her position could have believed the same thing.

FINAL INSTRUCTION NO. 5 - PROBABLE CAUSE





The elements of some of the claims in this lawsuit require you to determine whether a defendant had "probable cause" to believe that Jackie Busch had committed a crime. Whether probable cause existed is a common sense and practical determination that must be based upon the totality of the circumstances. A person has probable cause if the facts and circumstances within the person's knowledge and of which the person had reasonably trustworthy information were sufficient to warrant a prudent person, that is, a person of reasonable caution, in believing that Jackie Busch had committed or was committing a crime. An arresting officer must have probable cause at the moment the arrest was made or the warrant for arrest was requested. A person prosecuting an offense must have probable cause at the time of the prosecution. Information obtained later cannot establish probable cause at the time of the arrest or prosecution.

Whether there was probable cause for an arrest is measured by examining the law that Jackie Busch allegedly violated. However, an arresting officer is not required to have enough evidence to justify a conviction before making an arrest. Similarly, probable cause to prosecute does not require absolute certainty or proof beyond a reasonable doubt.

FINAL INSTRUCTION NO. 6 - PROXIMATE CAUSE





Several claims have as an element proof that conduct of a defendant was a "proximate cause" of damage to the plaintiffs. An act is a "proximate cause" of damage if the act was a substantial factor in producing the damage and the damage would not have happened except for the act. "Substantial" means that the act had such an effect in producing damage as to lead a reasonable person to regard it as a cause of the damage.

FINAL INSTRUCTION NO. 7 - INVASION OF PRIVACY





Jackie Busch alleges a claim of "invasion of privacy," in violation of the United States Constitution, against Doug Boetger arising from an incident on or about May 5, 1998. Jackie Busch alleges that, during that incident, while purportedly investigating a complaint that she had "harassed" the Mayor of the City of Anthon, Doug Boetger demanded to know who her therapists were and what medications she was taking, and looked through her prescription containers. To win on her claim of "invasion or privacy," Jackie Busch must prove all three of the following elements by the greater weight of the evidence as to defendant Boetger:

One, defendant Boetger required Jackie Busch to disclose personal information.

Jackie Busch alleges that the personal information she was required to disclose was who her therapists were and what medications she was taking.



Two, Jackie Busch had a legitimate expectation of privacy in that personal information.

The United States Constitution protects individuals against invasion of their privacy by the government, including invasions of privacy by government officials or law enforcement officers. The constitutional protection against invasion of privacy includes freedom from being required to disclose personal matters to the government. Therefore, the privacy interest protected by the Constitution includes the right to be free from government inquiries into matters in which a person has a legitimate expectation of privacy.

A person has a "legitimate expectation of privacy" if the person herself expects the matter to be private, and that expectation of privacy is one that society is willing to accept. Whether a person has a legitimate expectation of privacy in certain information depends, for example, on whether the person took reasonable steps to keep the information private; whether the person disclosed the information voluntarily, without a demand from the defendant or some other person; and whether the information is of a kind that would ordinarily be kept private.



Three, defendant Boetger did not have a legitimate and proper reason for obtaining the personal information, or his legitimate and proper reason for obtaining that information did not outweigh the threat to Jackie Busch's privacy interest.

The privacy interest protected by the Constitution includes the right to be free from government inquiries into matters in which a person has a legitimate expectation of privacy unless the government has a legitimate and proper reason for doing so, and that legitimate reason outweighs the threat to the person's privacy interest. Law enforcement officers, such as defendant Boetger, have a legitimate reason for asking questions that they reasonably believe will aid them in the investigation of a crime or possible crime, but they do not have a legitimate reason for asking questions if the only purpose for asking those questions is to harass or intimidate a person.

Moreover, even an inquiry for which there are legitimate and proper reasons can be conducted in a manner that is so intrusive on the plaintiff's privacy interest that the legitimate reasons for the inquiry do not outweigh the plaintiff's privacy interest. Therefore, you must balance the plaintiff's privacy interests against the officer's legitimate reasons, if any, for obtaining information about the plaintiff's therapists and medications. In performing this balancing of interests, you must consider the totality of the circumstances, including whether there were less intrusive means reasonably available to the officer to obtain the information, the need for and urgency of obtaining that information, and the manner in which the officer obtained the information.



If Jackie Busch has failed to prove all three of these elements by the greater weight of the evidence as to defendant Boetger, then you cannot find in favor of Jackie Busch on her claim of "invasion of privacy" in violation of the United States Constitution against defendant Boetger.

FINAL INSTRUCTION NO. 8 - FALSE ARREST AND IMPRISONMENT





Next, Jackie Busch alleges claims of "false arrest and imprisonment" in violation of the United States Constitution and Iowa law. However, there is no difference in the "elements" of the federal law and state law claims of false arrest and imprisonment under the circumstances of this case. Therefore, I will only explain one set of elements that Jackie Busch must prove by the greater weight of the evidence to prevail on her false arrest and imprisonment claims.

Jackie Busch's false arrest and imprisonment claims arise from two separate incidents, which involved different defendants. She alleges such claims against defendants Christine Garthright, Gregory Logan, Ruth Groth, and Helen Pulliam arising from the photocopying incident at the Anthon Public Library on or about May 26, 1998, and against defendant Angie Jorgenson, arising from the vehicle "bumping" incident at a gas station on or about November 21, 1998. You must give separate consideration to Jackie Busch's false arrest and imprisonment claims against each defendant.

To win on her claim of false arrest and imprisonment against a particular defendant, Jackie Busch must prove all three of the following elements by the greater weight of the evidence as to that defendant:

One, on or about the date alleged, the defendant arrested Jackie Busch, instigated the arrest of Jackie Busch, or requested a warrant that led to the arrest of Jackie Busch.

The parties agree that Jackie Busch was arrested by defendants Christine Garthright and Gregory Logan on or about May 26, 1998, on charges of interference with official acts, theft in the fifth degree, and simple assault, and that defendant Angie Jorgenson requested a warrant for Jackie Busch's arrest on charges of harassment and tampering with a motor vehicle after the incident at the gas station on November 21, 1998, and that Jackie Busch was arrested on that warrant.

However, defendants Ruth Groth and Helen Pulliam deny that they "instigated" the arrest of Jackie Busch on May 26, 1998, during the photocopying incident at the library, so you must decide that question. "Instigation" consists of words or acts which direct, request, invite, or encourage the arrest. In the case of an arrest, it is equivalent, in words or conduct, of "Officer, arrest that woman!" It is not enough for instigation that the actor has given information to the police about the commission or alleged commission of a crime, or has accused the other of committing it, so long as the actor leaves to the police the decision as to what to do about any arrest, without persuading or influencing the police. In other words, a person did not "instigate" an arrest merely by calling the law enforcement officers to the scene or giving information to law enforcement officers, if the law enforcement officers were left entirely free to use their own judgment, nor did a person "instigate" an arrest if the person merely identified the plaintiff as the person wanted for a crime.



Two, the arrest of Jackie Busch on the occasion in question was "false" or "unlawful."

Under both federal and Iowa law, an arrest is "false" or "unlawful" if the arresting officer did not have "probable cause" to make the arrest. On May 26, 1998, Jackie Busch was arrested for interference with official acts, theft in the fifth degree, and simple assault. To help you determine whether the arrest of Jackie Busch on May 26, 1998, was based on "probable cause" to believe that she had committed those crimes, you are advised that these offenses are defined under Iowa law as follows:

Interference with Official Acts: Knowingly resisting or obstructing anyone the actor knows to be a peace officer in the performance of any act which is within the scope of the lawful duty or authority of that officer.

Theft 5th Degree: The theft of property not exceeding one hundred dollars in value.

Assault--Simple: Any of the following: (1) any act which is intended to cause pain or injury to another, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act; (2) any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.

Jackie Busch was arrested after the incident on November 21, 1998, on a warrant requested by Angie Jorgenson charging Jackie Busch with harassment and tampering with a motor vehicle. These offenses are defined under Iowa law as follows:

Harassment: Purposefully, and without legitimate purpose, making personal contact with another person, with the intent to intimidate, annoy, or alarm that other person.

Tampering with a Motor Vehicle: Willfully injuring or tampering with any vehicle or breaking or removing any part or parts of or from a vehicle without the consent of the owner.

Although "probable cause" for an arrest is measured by examining the law that Jackie Busch allegedly violated, remember that the arresting officer is not required to have enough evidence to justify a conviction before making an arrest.



Three, the false arrest and imprisonment was a proximate cause of damage to the plaintiff.

The plaintiff must prove that the damage would not have happened without the conduct that made the arrest "false" or "unlawful."



If Jackie Busch has failed to prove all three of these elements by the greater weight of the evidence as to a particular defendant, then you cannot find in favor of Jackie Busch on her claim of "false arrest and imprisonment" against that defendant.

FINAL INSTRUCTION NO. 9 - ASSAULT AND BATTERY





Next, Jackie Busch alleges claims of "assault and battery" in violation of Iowa law. Her assault and battery claims also arise from two separate incidents, which involved different defendants. She alleges such a claim against defendant Ron Houghtaling, arising from a confrontation outside of the Anthon Public Library on or about April 26, 1998, and another such claim against defendant Ruth Groth, arising from the photocopying incident at the Public Library on or about May 26, 1998.

I just stated the definition of "assault" under Iowa law in the preceding instruction, on page 24. Threatening words alone do not constitute an assault unless it appears that the person has the ability to carry out the threat at the time the words were spoken. Under Iowa law, "battery" is defined as intentionally doing any of the following: (1) any act resulting in bodily contact causing physical pain or injury; (2) any act resulting in bodily contact, which a reasonable person would deem insulting or offensive.

Jackie Busch's Claims

To win on her claim of assault and battery against a particular defendant, Jackie Busch must prove all five of the following elements by the greater weight of the evidence as to that defendant:

One, on or about the date alleged, the defendant acted in a threatening manner towards Jackie Busch, made physical contact with her, or both.

Jackie Busch alleges that Ron Houghtaling made verbal threats, placed his hands on her shoulders, and shoved her backwards. Jackie Busch alleges that Ruth Groth placed both of her hands on the back door separating the library from the city offices and slammed the door onto Jackie's back.



Two, the defendant's acts were done with the intent to put Jackie Busch in fear of physical pain or injury or in fear of physical contact that would be insulting or offensive, or were done with intent to cause her physical pain or injury.

Acting with "intent" means that the actor did something on purpose, as opposed to accidentally. Because "intent" involves what a person was thinking when doing the act, it can seldom be proved by direct evidence. Instead, you may use your common experience when considering all of the facts surrounding the doing of an act to determine what a person's intent was when committing the act. If you find that a person did an act on purpose, then you may also find that the person intended the things that would naturally result from that act.



Three, Jackie Busch reasonably believed that the act or acts would be carried out immediately or the acts actually resulted in physical pain or injury, or insulting or offensive bodily contact.

Four, the act or acts of the defendant were a proximate cause of the plaintiff's damage.

Five, the amount of damages.

If Jackie Busch has failed to prove all five of the above elements by the greater weight of the evidence against a defendant, then you cannot find in favor of Jackie Busch on her claim of "assault and battery" against that defendant. However, if you find that Jackie Busch has proved all of these elements by the greater weight of the evidence as to a particular defendant, then you must consider whether that defendant has proved by the greater weight of the evidence his or her affirmative defense of "self-defense."

Defendants' Affirmative Defenses

A person was justified in using reasonable force if he or she reasonably believed that use of such force was necessary to defend himself or herself from any imminent use of unlawful force by another. Consequently, in order to win on an affirmative defense of "self-defense," the defendant must prove the following three elements by the greater weight of the evidence:

One, the defendant reasonably believed that he or she was in imminent danger of unlawful injury or the use of unlawful force by Jackie Busch.

Two, the defendant reasonably believed that use of force was necessary to protect himself or herself from bodily injury at the hands of plaintiff Jackie Busch.

Three, the defendant used only reasonable force to defend himself or herself.

"Reasonable force" is only the amount of force a reasonable person would find necessary to use under the circumstances to prevent injury to himself or herself.



If a defendant has proved by the greater weight of the evidence all three of the elements of his or her affirmative defense of "self-defense," then you cannot find in favor of Jackie Busch on her claim of assault and battery against that defendant.

FINAL INSTRUCTION NO. 10 - MALICIOUS PROSECUTION





Next, Jackie Busch alleges a claim of "malicious prosecution," in violation of Iowa law, arising from the photocopying incident on May 26, 1998. This claim is asserted against two defendants, Ruth Groth and Helen Pulliam. Therefore, you must give separate consideration to Jackie Busch's claim of "malicious prosecution" against each defendant.

To win on her claim of malicious prosecution against a particular defendant, Jackie Busch must prove all seven of the following elements by the greater weight of the evidence as to that defendant:

One, plaintiff Jackie Busch was prosecuted in criminal proceedings arising from the incident on May 26, 1998.

After her arrest on May 26, 1998, Jackie Busch was prosecuted in criminal proceedings in Woodbury County District Associate Court in Sioux City on charges of interference with official acts, theft in the fifth degree, and simple assault.



Two, the defendant caused that prosecution.

A defendant "caused" the prosecution if she personally filed the criminal charges. A defendant also "caused" the prosecution, even if she did not personally file the criminal charges, if she convinced a public official to file them. However, a defendant did not cause the prosecution if the decision to file the charges was left to the uncontrolled choice of another person.

When a defendant gives information that she believes to be true to a prosecutor or official and the person receiving the information freely chooses to file charges based upon that information, the defendant is not liable even though the information proves to be false and her belief in the truth of the information was one that a reasonable person would not have had.

Therefore, you may conclude that a defendant caused the prosecution if that defendant caused the filing of charges by either giving information that she knew to be false to a prosecutor or public official or influenced the prosecutor or public official by direction, request, or pressure of any kind so that the defendant's conduct was the determining factor in the decision to file the charges.



Three, the prosecution ended favorably for Jackie Busch.

The trial court's not guilty verdict in the criminal proceedings constitutes a favorable ending to the prosecution for Jackie Busch.



Four, the defendant caused the prosecution without probable cause to believe that Jackie Busch had committed a crime.

To help you determine whether the prosecution was without probable cause, you should consider the definition of the offenses for which Jackie Busch was prosecuted following her arrest on May 26, 1998. Those definitions were stated for you in Final Jury Instruction No. 8, in the explanation to element two, beginning on page 24. The favorable ending of the prosecution is evidence from which you may conclude that the criminal prosecution was without probable cause unless that conclusion is overcome by other evidence.



Five, the defendant acted with malice.

An act was done "with malice" if the main reason for doing the act was ill-will, hatred, or other wrongful motive. However, the fact that the defendant disliked or felt resentment towards the plaintiff, standing alone, would not constitute "malice."



Six, the prosecution of Jackie Busch was a proximate cause of damage to her.

Seven, the amount of damages.

If Jackie Busch has failed to prove all seven of the above elements by the greater weight of the evidence against a defendant, then you cannot find in favor of Jackie Busch on her claim of "malicious prosecution" against that defendant.

FINAL INSTRUCTION NO. 11 - ABUSE OF PROCESS





Finally, Jackie Busch alleges a claim of "abuse of process," in violation of Iowa law, also arising from the photocopying incident on May 26, 1998. This claim is also asserted against defendants Ruth Groth and Helen Pulliam. Therefore, you must give separate consideration to Jackie Busch's claim of "abuse of process" against each defendant.

To win on her claim of abuse of process against a particular defendant, Jackie Busch must prove all four of the following elements by the greater weight of the evidence as to that defendant:

One, on or about May 26, 1998, the defendant intentionally caused the arrest and subsequent prosecution of Jackie Busch.

Acting with "intent" was explained for you in Final Jury Instruction No. 9, in the explanation to element two, beginning on page 27. "Causing" or "instigating" an arrest was explained for you in Final Jury Instruction No. 8, in the explanation to element one, beginning on page 24. "Causing" a prosecution was explained for you in Final Jury Instruction No. 10, in the explanation to element two, beginning on page 29.



Two, the defendant used the legal process of arrest and prosecution primarily for an improper purpose, and not for its intended use.

The word "primarily" here means that the wrongful purpose must have been the main reason for using the process. If the process is used primarily for its intended purpose, it makes no difference whether the defendant dislikes the plaintiff or if the defendant's motives in using the process were improper. However, it is improper to use the legal process of arrest and prosecution primarily to harass someone. The result of the criminal prosecution does not matter. However, the absence of probable cause for the arrest or prosecution is evidence from which you may conclude that the defendant was using the process primarily for an improper purpose.



Three, the defendant's use of the legal process primarily for an improper purpose was a proximate cause of Jackie Busch's damage.

Four, the amount of damages.

If Jackie Busch has failed to prove all four of the above elements by the greater weight of the evidence against a defendant, then you cannot find in favor of Jackie Busch on her claim of "abuse of process" against that defendant.

FINAL INSTRUCTION NO. 12 - LIABILITY OF THE CITY





The parties agree that if defendants Ron Houghtaling, Ruth Groth, or Helen Pulliam are found liable on a particular claim under these instructions, then the City of Anthon is also liable on that claim, because those defendants were acting within the scope of their employment as city employees. However, you will not be asked to make a separate award of damages against the City of Anthon.

FINAL INSTRUCTION NO. 13 - DAMAGES--IN GENERAL





The fact that I am instructing you on the proper measure of damages should not be considered as an indication that I have any view as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance in the event that you should find that a plaintiff is entitled to damages in accord with the other instructions. If you find that a plaintiff is entitled to damages on a particular claim, you must award that plaintiff such sum as you find by the greater weight of the evidence will fairly and justly compensate that plaintiff for any damages that you find were proximately caused to that plaintiff by the wrongful conduct of the defendants involved in that claim.

This lawsuit involves seven claims. You must award full damages for each claim that you find that Jackie Busch has proved by the greater weight of the evidence. You must award the full amount for any item of damages on a particular claim that Jackie Busch has proved by the greater weight of the evidence. For example, if you find that Jackie Busch has proved damages for emotional distress on a claim of "assault and battery," then you must award all damages for emotional distress that were proximately caused by that assault and battery. However, a party cannot recover duplicate damages. Therefore, do not allow your damages award on one claim to overlap your damages award on another claim, and do not allow amounts awarded under one item of damage on a particular claim to be included in any amount awarded under another item of damage on that claim.

In arriving at an item of damage, you cannot establish a figure by taking down the estimate of each juror as to that item of damage and agreeing in advance that the average of those estimates shall be your award of damage for that item. The amount, if any, that you assess for some items of non-economic damages, such as emotional distress, cannot be measured by an exact or mathematical standard. You must use your sound judgment based upon an impartial consideration of the evidence.

Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. With the exception of "punitive damages," which I will explain below, you must not award damages under this Instruction by way of punishment or through sympathy. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against any of the parties. The amount you assess for any specific item of damage must not exceed the amount caused by the defendants as proved by the evidence.

Attached to these Instructions is a verdict form, which you must fill out. In the "Damages" section of the verdict form for each of the plaintiff's claims, the types of damages claimed by the plaintiff are identified. The fact that a certain type of damages is identified should not be considered as an indication that you must award a sum for that type of damages. You should only award those damages, if any, that a particular plaintiff has proved by the greater weight of the evidence.

FINAL INSTRUCTION NO. 14 - DAMAGES--SPECIFIC ITEMS



If you find in favor of Jackie Busch on one or more of her claims, then you must award her such sum as you find by the greater weight of the evidence will fairly and justly compensate her for damages, if any, that you find were proximately caused by the wrongful conduct of the defendants.

The Busches claim five distinct types of damages, which you must consider separately:

Past medical expenses. Damages for Jackie Busch's past medical expenses are the reasonable value of necessary hospital, doctor, or counseling charges, prescriptions, and other medical services from the date of injury to the present time.

Future medical expenses. Damages for Jackie Busch's future medical expenses are the reasonable and necessary hospital, doctor, and counseling charges, prescriptions, and other medical services that will be incurred in the future, that is, from the present date into the future.

Emotional distress. Damages for Jackie Busch's emotional distress are the amount of damages that will reasonably compensate Jackie Busch for the emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life that was proximately caused by the wrongful conduct of the defendants.

Loss of spousal consortium. Plaintiff Larry Busch seeks damages for loss of spousal consortium owing to the defendants' wrongful conduct toward his wife, plaintiff Jackie Busch. Damages for loss of spousal consortium are the amount of damages that will reasonably compensate Larry Busch for the loss of the fellowship of a husband and wife and their right to the benefits of company, cooperation, affection, and aid of the other in the marital relationship, including general usefulness, industry, and attention within the home and family. Damages for spousal consortium do not include damages for loss of financial support from the injured spouse, or mental anguish caused by the spouse's injury.

Instead of awarding damages for past and future medical expenses, emotional distress, and loss of spousal consortium on any claim, you may award only nominal damages in the amount of One Dollar ($1.00), if you find that Jackie Busch is otherwise entitled to prevail on those claims, but her damages and Larry Busch's damages for loss of consortium on that particular claim have no monetary value. The purpose of nominal damages is to vindicate Jackie Busch's claim in circumstances where her damages have no monetary value.

Punitive damages. Under certain circumstances, the law permits the jury to award an injured person "punitive damages" in order to punish defendants for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct. You may, but are not required to, award Jackie Busch punitive damages against a defendant on any particular claim if you find (1) that the defendant acted with malice or reckless indifference to Jackie Busch's rights as to that claim, and (2) it is appropriate to punish that defendant and to discourage that defendant and others from like conduct in the future. On a claim on which Jackie Busch has prevailed against more than one defendant, you may award punitive damages against one, some, all, or none of those defendants, based on these two required findings and the exercise of your discretion.

Factors that you may consider in awarding punitive damages against any particular defendant against whom Jackie Busch has prevailed on any particular claim include, but are not limited to, the following: the nature of a defendant's conduct at issue on that claim; the impact of the defendant's conduct on the plaintiffs; the relationship between Jackie Busch and the defendant; the likelihood that the defendant would repeat the conduct if a punitive award is not made; the defendant's financial condition; the plaintiffs' actual damages, if any; and any other circumstances shown by the evidence, including any circumstances of mitigation, that bear on the question of the size of any punitive award.

FINAL INSTRUCTION NO. 15 - DAMAGES--SPECIFIC LIMITATIONS



In determining the amount of damages for past and future medical expenses, emotional distress, and loss of spousal consortium, you must consider two specific limitations:

Aggravation of Pre-Existing Condition. If you find that Jackie Busch had a psychological condition before a specific incident from which one of her claims arises, and that this condition was aggravated by the wrongful conduct of a defendant, then Jackie Busch is entitled to recover only the damages caused by the aggravation. She is not entitled to recover for any mental ailment or disability that existed before that incident or for any injuries or damages that she now has that were not caused by a defendant's actions in that incident.

Second Injury. If you find that Jackie Busch was injured by another act after an incident giving rise to one of her claims, then she cannot recover on that claim for any aggravation of her psychological condition not caused by the wrongful conduct of a defendant on that claim.

FINAL INSTRUCTION NO. 16 - DELIBERATIONS



In conducting your deliberations and returning your verdict, there are certain rules you must follow.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges--judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone--including me--how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. Nothing I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.

Finally, I am giving you the verdict form. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and complete it when you have reached a verdict. Your verdict must be unanimous and you must all sign the verdict form. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 23rd day of May, 2002.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



JACQUELINE K. BUSCH and LARRY BUSCH,
Plaintiffs,

No. C 00-4044-MWB

vs.





VERDICT FORM

CITY OF ANTHON, IOWA, RON HOUGHTALING, RUTH GROTH, HELEN PULLIAM, DOUG BOETGER, CHRISTINE GARTHRIGHT, GREGORY LOGAN, and ANGIE JORGENSON,
Defendants.

____________________



On the claims and defenses of the parties, we, the Jury, find as follows:



INVASION OF PRIVACY






Step 1:

Liability

(a) On Jackie Busch's claim of "invasion of privacy," in violation of the United States Constitution, against Doug Boetger arising from an incident on or about May 5, 1998, as explained in Final Jury Instruction No. 7, in whose favor do you find? ____ Jackie Busch
____ Doug Boetger
(b) If you found in favor of Jackie Busch on this claim, which of the following did you find? ___ Doug Boetger had no legitimate and proper reason for the inquiries
___ Any legitimate and proper reason for the inquiries was outweighed by Jackie Bushes' privacy interest







Step 2:

Damages

(a) If you found in favor of Jackie Busch on this claim, what amount of actual damages, if any, or nominal damages do you award for the following items, as damages are explained in Final Jury Instructions Nos. 13, 14, and 15? Past medical expenses $ _________________
Future medical expenses $ _________________
Emotional distress $ _________________
Loss of spousal consortium $ _________________
OR Nominal damages $ _________________
(b) What amount of punitive damages, if any, do you award against this defendant?



Punitive damages


$ _________________
FALSE ARREST AND IMPRISONMENT
First Claim of False Arrest and Imprisonment






Step 1:

Liability

(a) On Jackie Busch's first claim of "false arrest and imprisonment," in violation of the United States Constitution and Iowa law, arising from the photocopying incident at the Anthon Public Library on or about May 26, 1998, as explained in Final Jury Instruction No. 8, in whose favor do you find?
____ Jackie Busch OR ____ Christine Garthright
____ Jackie Busch OR ____ Gregory Logan
____ Jackie Busch OR ____ Ruth Groth
____ Jackie Busch OR ____ Helen Pulliam







Step 2:

Damages

(a) If you found in favor of Jackie Busch on this claim, what amount of actual damages, if any, or nominal damages do you award for the following items, as damages are explained in Final Jury Instructions Nos. 13, 14, and 15? Past medical expenses $ _________________
Future medical expenses $ _________________
Emotional distress $ _________________
Loss of spousal consortium $ _________________
OR Nominal damages $ _________________
(b) What amount of punitive damages, if any, do you award against each defendant against whom Jackie Busch has proved this claim? Christine Garthright $ _________________
Was this defendant's conduct directed specifically at Jackie Busch? ___ Yes

___ No

Gregory Logan $ _________________
Was this defendant's conduct directed specifically at Jackie Busch? ___ Yes

___ No

Ruth Groth $ _________________
Was this defendant's conduct directed specifically at Jackie Busch? ___ Yes

___ No

Helen Pulliam $ _________________
Was this defendant's conduct directed specifically at Jackie Busch? ___ Yes

___ No

Second Claim of False Arrest and Imprisonment



Step 1:

Liability

(a) On Jackie Busch's second claim of "false arrest and imprisonment," in violation of the United States Constitution and Iowa law, and against defendant Angie Jorgenson, arising from the vehicle "bumping" incident at a gas station on or about November 21, 1998, as explained in Final Jury Instruction No. 8, in whose favor do you find?
____ Jackie Busch OR ____ Angie Jorgenson







Step 2:

Damages

(a) If you found in favor of Jackie Busch on this claim, what amount of actual damages, if any, or nominal damages do you award for the following items, as damages are explained in Final Jury Instructions Nos. 13, 14, and 15? Past medical expenses $ _________________
Future medical expenses $ _________________
Emotional distress $ _________________
Loss of spousal consortium $ _________________
OR Nominal damages $ _________________
(b) What amount of punitive damages, if any, do you award against this defendant? Punitive damages $ _________________
Was the defendant's conduct directed specifically at Jackie Busch? ___ Yes

___ No

ASSAULT AND BATTERY
First Claim of Assault and Battery



Step 1:

Liability

(a) On Jackie Busch's first claim of "assault and battery," in violation of Iowa law, against defendant Ron Houghtaling, arising from a confrontation outside of the Anthon Public Library on or about April 26, 1998, as explained in Final Jury Instruction No. 9, in whose favor do you find?
____ Jackie Busch OR ____ Ron Houghtaling







Step 2:

Damages

(a) If you found in favor of Jackie Busch on this claim, what amount of actual damages, if any, or nominal damages do you award for the following items, as damages are explained in Final Jury Instructions Nos. 13, 14, and 15? Past medical expenses $ _________________
Future medical expenses $ _________________
Emotional distress $ _________________
Loss of spousal consortium $ _________________
OR Nominal damages $ _________________
(b) What amount of punitive damages, if any, do you award against this defendant? Punitive damages $ _________________
Was the defendant's conduct directed specifically at Jackie Busch? ___ Yes

___ No

Second Claim of Assault and Battery



Step 1:

Liability

(a) On Jackie Busch's second claim of "assault and battery," in violation of Iowa law, against defendant Ruth Groth, arising from the photocopying incident at the Public Library on or about May 26, 1998, as explained in Final Jury Instruction No. 9, in whose favor do you find?
____ Jackie Busch OR ____ Ruth Groth







Step 2:

Damages

(a) If you found in favor of Jackie Busch on this claim, what amount of actual damages, if any, or nominal damages do you award for the following items, as damages are explained in Final Jury Instructions Nos. 13, 14, and 15? Past medical expenses $ _________________
Future medical expenses $ _________________
Emotional distress $ _________________
Loss of spousal consortium $ _________________
OR Nominal damages $ _________________
(b) What amount of punitive damages, if any, do you award against this defendant? Punitive damages $ _________________
Was the defendant's conduct directed specifically at Jackie Busch? ___ Yes

___ No

MALICIOUS PROSECUTION





Step 1:

Liability

(a) On Jackie Busch's claim of "malicious prosecution," in violation of Iowa law, arising from the photocopying incident at the Anthon Public Library on or about May 26, 1998, as explained in Final Jury Instruction No. 10, in whose favor do you find?
____ Jackie Busch OR ____ Ruth Groth
____ Jackie Busch OR ____ Helen Pulliam







Step 2:

Damages

(a) If you found in favor of Jackie Busch on this claim, what amount of actual damages, if any, or nominal damages do you award for the following items, as damages are explained in Final Jury Instructions Nos. 13, 14, and 15? Past medical expenses $ _________________
Future medical expenses $ _________________
Emotional distress $ _________________
Loss of spousal consortium $ _________________
OR Nominal damages $ _________________
(b) What amount of punitive damages, if any, do you award against each defendant against whom Jackie Busch has proved this claim? Ruth Groth $ _________________
Was this defendant's conduct directed specifically at Jackie Busch? ___ Yes

___ No

Helen Pulliam $ _________________
Was this defendant's conduct directed specifically at Jackie Busch? ___ Yes

___ No

ABUSE OF PROCESS





Step 1:

Liability

(a) On Jackie Busch's claim of "abuse of process," in violation of Iowa law, arising from the photocopying incident at the Anthon Public Library on or about May 26, 1998, as explained in Final Jury Instruction No. 11, in whose favor do you find?
____ Jackie Busch OR ____ Ruth Groth
____ Jackie Busch OR ____ Helen Pulliam







Step 2:

Damages

(a) If you found in favor of Jackie Busch on this claim, what amount of actual damages, if any, or nominal damages do you award for the following items, as damages are explained in Final Jury Instructions Nos. 13, 14, and 15? Past medical expenses $ _________________
Future medical expenses $ _________________
Emotional distress $ _________________
Loss of spousal consortium $ _________________
OR Nominal damages $ _________________
(b) What amount of punitive damages, if any, do you award against each defendant against whom Jackie Busch has proved this claim? Ruth Groth $ _________________
Was this defendant's conduct directed specifically at Jackie Busch? ___ Yes

___ No

Helen Pulliam $ _________________
Was this defendant's conduct directed specifically at Jackie Busch? ___ Yes

___ No

TOTAL OF ACTUAL DAMAGES
What is the total amount for each item of damages that you intend to award for all claims? Past medical expenses $ _________________
Future medical expenses $ _________________
Emotional distress $ _________________
Loss of spousal consortium $ _________________





Date: ________________ Time: ________________





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Foreperson

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