IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



JENI CRUZ and MILTON CRUZ,
Plaintiffs,

No. C 00-4002-MWB

vs.



PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

MARK A. PROSSER, individually and in his official capacity as Chief of Police of the Storm Lake Police Department, TODD ERSKINE, individually and in his official capacity as Captain of the Storm Lake Police Department, and CITY OF STORM LAKE,
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 - ELEMENTS OF "ILLEGAL ARREST" AND MUNICIPAL

LIABILITY 4

NO. 5 - ORDER OF TRIAL 9

NO. 6 - DEFINITION OF EVIDENCE 10

NO. 7 - CREDIBILITY OF WITNESSES 11

NO. 8 - STIPULATED FACTS 13

NO. 9 - DEPOSITIONS 14

NO. 10 - INTERROGATORIES 15

NO. 11 - OBJECTIONS 16

NO. 12 - BENCH CONFERENCES 17

NO. 13 - NOTE-TAKING 18

NO. 14 - CONDUCT OF JURORS DURING TRIAL 19

FINAL INSTRUCTIONS 21

NO. 1 - INTRODUCTION 21

NO. 2 - IMPEACHMENT OF WITNESSES 22

NO. 3 - "ILLEGAL ARREST" 23

NO. 4 - MUNICIPAL LIABILITY 26

NO. 5 - DAMAGES--IN GENERAL 28

NO. 6 - DAMAGES--SPECIFIC 30

NO. 7 - DAMAGES--NOMINAL 31

NO. 8 - PUNITIVE DAMAGES 32

NO. 9 - DELIBERATIONS 34



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 police officers and the defendant City of Storm Lake is a municipality. The mere fact that a party is a police officer 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 defendant police officers, and the City of Storm Lake, stand equal before the law, and are entitled to the same fair consideration by you. When a municipality such as the City of Storm Lake is involved, of course, it may act only through natural persons as its agents or employees. I will instruct you further on the circumstances under which the City of Storm Lake can or cannot be held liable for the official actions of the individual defendants.

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 depends upon that fact, in this case, Jeni and Milton Cruz. The Cruzs must each 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 - ELEMENTS OF "ILLEGAL ARREST"

AND MUNICIPAL LIABILITY





To help you follow the evidence, I will now explain the elements of the Cruzs' claims of violation of their civil rights and the standards for liability, if any, of the City of Storm Lake for actions of the individual defendants. You must give separate consideration to each plaintiff's claim, including any award of damages, and separate consideration to each defendant's defense to each plaintiff's claim.



Liability of Individual Defendants

The Cruzs each contend that Mark Prosser and Todd Erskine arrested them in violation of their civil rights, and the defendants deny those claims. To win on his or her "illegal arrest" claim against either defendant, a plaintiff must prove all three of the following elements by the greater weight of the evidence as to that defendant:

One, on or about August 11, 1999, the defendant detained the plaintiff.

The plaintiff was "detained" if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave.



Two, the initial detention became, or was carried out in a manner that made it, an "illegal arrest."

You are instructed that, after the Storm Lake police officers had secured the person who called for assistance, they were justified in conducting a "protective sweep," or quick and limited search, of the residence in order to ensure the safety of other individuals in the residence, members of the public, and the officers on the scene, and would have been derelict in their duty to perform "community care-taking functions," which are actions to protect members of the public or occupants of the residence regardless of any suspected criminal activity, had they not done so. You are also instructed that the Storm Lake police officers were justified in briefly detaining any occupants found in the residence in the course of such a "protective sweep."

However, an initial "legal" detention of the occupants that was justified by a protective sweep may nevertheless become, or may be carried out in a manner that makes it, an "illegal arrest." In distinguishing between a "legal detention" and an "illegal arrest," you should consider the length of the detention and the conduct of the law enforcement officer. The officer must use the least intrusive means reasonably available to verify or dispel the officer's concerns in as short a period of time as is reasonable. If the detention lasts unreasonably long, or if the officer's conduct is unreasonably intrusive, then the detention is converted into an "illegal arrest."

A detention must be temporary and must last no longer than is reasonably necessary to effectuate the purpose of the detention, which in this case, was to ensure the safety of the persons present on the scene, including police officers, occupants of the house, and members of the public, and to learn the identity of the persons present in the residence. There are no rigid time limitations on a detention, but the detention may last unreasonably long if it involves delay unnecessary to the legitimate concerns of the police officer. You should also consider whether the person detained contributed to any delay by acting aggressively, suspiciously, or uncooperatively. If the detention lasts unreasonably long, then it is converted into an "illegal arrest."

An otherwise legal detention is also converted into an "illegal arrest" if the conduct of the officer in detaining the plaintiff was unreasonably intrusive. The following factors should be considered in determining whether the detention was unreasonably intrusive: (1) the circumstances prompting the protective sweep and the strength or weakness of the officer's belief that police officers or members of the public were at risk; (2) the number of officers and police cars involved; (3) whether the officer's conduct created fear or humiliation that a reasonable person would find to be excessive; (4) whether there were reasonable opportunities to make the detention less threatening; (5) whether the officer reasonably needed to take immediate action; (6) whether the person detained was unnecessarily removed from the residence; and (7) whether the person detained was unnecessarily handcuffed or physically restrained. You should also consider whether the person detained contributed to actions taken by the police officer by acting aggressively, suspiciously, or uncooperatively.

No single factor necessarily transforms a detention into an "illegal arrest." Also, not all of the factors have to be present for you to find that the detention was converted into an "illegal arrest." Rather, you must determine whether the detention became an "illegal arrest" in light of all of the circumstances presented.



Three, as a direct result of the "illegal arrest," the plaintiff was damaged.

In order to establish a violation of civil rights by a particular defendant, the plaintiff must prove that his or her damage was a direct result of an "illegal arrest." Damage was a "direct result" of an "illegal arrest" if the "illegal arrest" was a substantial factor in producing the damage and the damage would not have happened without the conduct that made the detention an "illegal arrest."



If a plaintiff has failed to prove all three of these elements by the greater weight of the evidence as to a particular defendant, you cannot find that defendant violated that plaintiff's civil rights.



Liability of the City of Storm Lake

A municipality, such as the City of Storm Lake, may be held liable for the actions of its police officers, such as defendants Prosser and Erskine, if the police officer's violation of a plaintiff's civil rights occurred as a direct result of a municipal policy, custom, or practice. Therefore, in order for Jeni or Milton Cruz to prevail on an "illegal arrest" claim against the City of Storm Lake, that plaintiff must prove the following two essential elements by the greater weight of the evidence:

One, the plaintiff was deprived of his or her civil rights by one or both of the defendant police officers.

You may find that this element has been proved only if you first find in favor of the plaintiff on his or her claim of "illegal arrest" against one or both of the individual defendants, as explained just above.



Two, the improper actions of the police officer or officers were a result of a policy, custom, or practice of the City of Storm Lake.

A plaintiff may establish municipal liability for a violation of his or her civil rights by proving that his or her civil rights were violated by an action pursuant to "official municipal policy" or misconduct so pervasive among non-policymaking employees of the municipality as to constitute a "custom or usage" with the force of law.

"Official municipal policy" involves a deliberate choice to follow a course of action made from among various alternatives by an official who has the final authority to establish municipal policy.

Alternatively, "custom or usage" is demonstrated by proof of the following:

(1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the municipality's employees;

(2) Deliberate indifference to or tacit authorization of such conduct by the municipality's policymaking officials after notice to the officials of that misconduct; and

(3) The plaintiff's injury by acts pursuant to the municipality's custom, i.e., proof that the custom was the moving force behind the violation of the plaintiff's civil rights.



If a particular plaintiff has failed to prove both of these elements of municipal liability by the greater weight of the evidence, then you cannot hold the City of Storm Lake liable on that plaintiff's claim of "illegal arrest." However, if you find that a particular plaintiff has proved both of these elements of municipal liability by the greater weight of the evidence, then you may hold the City of Storm Lake liable on that plaintiff's claim of "illegal arrest" on the ground that the violation of that plaintiff's civil rights was the result of a policy, custom, or practice of the City of Storm Lake.

PRELIMINARY INSTRUCTION NO. 5 - ORDER OF TRIAL



The trial will proceed as follows:

After these preliminary instructions, the plaintiffs' attorney may make an opening statement. Next, the lawyer for the defendants may 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 lawyer 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. 6 - DEFINITION OF EVIDENCE



You shall base your verdict only upon the evidence, these instructions, and other instructions that I may give you during the trial.

Evidence is:

1. Testimony of witnesses, which includes testimony given in person or testimony previously given in depositions or videotaped depositions.

2. Exhibits admitted into evidence by the court.

3. Stipulations, which are agreements between the parties.

4. Any other matter admitted into evidence.

Evidence may be direct or circumstantial. You should not be concerned with these terms since 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.

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.

Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular 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.

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

PRELIMINARY INSTRUCTION NO. 7 - 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, or only part of it, or none of it.

In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, the motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.

You may hear testimony from persons described as experts. Persons who have become experts in a field because of their education and experience may give their opinions on matters in that field and the reasons for their opinions. Consider expert testimony just like any other testimony. You may accept it or reject it. You may give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case. Also, an expert witness may be asked to assume certain facts are true and to give an opinion based on that assumption. This is called a hypothetical question. If any facts assumed in the question are not proved by the evidence, you should decide if that omission affects the value of the expert's opinion.

Finally, just because a witness works in law enforcement or is employed by a governmental subdivision does not mean that you should give more weight or credence to such a witness's testimony than you give to any other witness's testimony.

PRELIMINARY INSTRUCTION NO. 8 - 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. 9 - 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. 10 - 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. 11 - OBJECTIONS



From time to time during the trial, I may be called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the lawyer for each party to object when another party offers testimony or other evidence that the lawyer believes is not properly admissible. You should not show prejudice against a lawyer or the party the lawyer represents because the lawyer has made objections. You should not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other. Also, if I sustain an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question itself.

PRELIMINARY INSTRUCTION NO. 12 - BENCH CONFERENCES



During the trial it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that 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, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.

PRELIMINARY INSTRUCTION NO. 13 - NOTE-TAKING



If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all of the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider the evidence carefully without taking notes. You should not be overly influenced by the notes.

You will notice that we do 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. 14 - CONDUCT OF JURORS

DURING TRIAL





You will not be required to remain together while court is in recess. However, to ensure 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 not only that you 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, remember it is because they are not supposed to talk or visit with you either.

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.

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.

DATED this 7th day of January, 2002.



FINAL INSTRUCTION NO. 1 - INTRODUCTION



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

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now, 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. 7, 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, or by evidence that at some 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 you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.

FINAL INSTRUCTION NO. 3 - "ILLEGAL ARREST"





In this case, the Cruzs contend that Mark Prosser and Todd Erskine arrested them in violation of their civil rights, and the defendants deny the Cruzs' claims. As I explained at the beginning of trial, you must give separate consideration to each plaintiff's claim, including any award of damages, and separate consideration to each defendant's defense to each plaintiff's claim. I will now explain the elements of the Cruzs' "illegal arrest" claims against the individual defendants, Mark Prosser and Todd Erskine.

To win on his or her "illegal arrest" claim against either defendant, a plaintiff must prove all three of the following elements by the greater weight of the evidence as to that defendant:

One, on or about August 11, 1999, the defendant detained the plaintiff.

The plaintiff was "detained" if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave.



Two, the initial detention became, or was carried out in a manner that made it, an "illegal arrest."

You are instructed that, after the Storm Lake police officers had secured the person who called for assistance, they were justified in conducting a "protective sweep," or quick and limited search, of the residence in order to ensure the safety of other individuals in the residence, members of the public, and the officers on the scene, and would have been derelict in their duty to perform "community care-taking functions," which are actions to protect members of the public or occupants of the residence regardless of any suspected criminal activity, had they not done so. You are also instructed that the Storm Lake police officers were justified in briefly detaining any occupants found in the residence in the course of such a "protective sweep."

However, an initial "legal" detention of the occupants that was justified by a protective sweep may nevertheless become, or may be carried out in a manner that makes it, an "illegal arrest." In distinguishing between a "legal detention" and an "illegal arrest," you should consider the length of the detention and the conduct of the law enforcement officer. The officer must use the least intrusive means reasonably available to verify or dispel the officer's concerns in as short a period of time as is reasonable. If the detention lasts unreasonably long, or if the officer's conduct is unreasonably intrusive, then the detention is converted into an "illegal arrest."

A detention must be temporary and must last no longer than is reasonably necessary to effectuate the purpose of the detention, which in this case, was to ensure the safety of the persons present on the scene, including police officers, occupants of the house, and members of the public, and to learn the identity of the persons present in the residence. There are no rigid time limitations on a detention, but the detention may last unreasonably long if it involves delay unnecessary to the legitimate concerns of the police officer. You should also consider whether the person detained contributed to any delay by acting aggressively, suspiciously, or uncooperatively. If the detention lasts unreasonably long, then it is converted into an "illegal arrest."

An otherwise legal detention is also converted into an "illegal arrest" if the conduct of the officer in detaining the plaintiff was unreasonably intrusive. The following factors should be considered in determining whether the detention was unreasonably intrusive: (1) the circumstances prompting the protective sweep and the strength or weakness of the officer's belief that police officers or members of the public were at risk; (2) the number of officers and police cars involved; (3) whether the officer's conduct created fear or humiliation that a reasonable person would find to be excessive; (4) whether there were reasonable opportunities to make the detention less threatening; (5) whether the officer reasonably needed to take immediate action; (6) whether the person detained was unnecessarily removed from the residence; and (7) whether the person detained was unnecessarily handcuffed or physically restrained. You should also consider whether the person detained contributed to actions taken by the police officer by acting aggressively, suspiciously, or uncooperatively.

No single factor necessarily transforms a detention into an "illegal arrest." Also, not all of the factors have to be present for you to find that the detention was converted into an "illegal arrest." Rather, you must determine whether the detention became an "illegal arrest" in light of all of the circumstances presented.



Three, as a direct result of the "illegal arrest," the plaintiff was damaged.

In order to establish a violation of civil rights by a particular defendant, the plaintiff must prove that his or her damage was a direct result of an "illegal arrest." Damage was a "direct result" of an "illegal arrest" if the "illegal arrest" was a substantial factor in producing the damage and the damage would not have happened without the conduct that made the detention an "illegal arrest."



If a plaintiff has failed to prove all three of these elements by the greater weight of the evidence as to a particular defendant, you cannot find that defendant violated that plaintiff's civil rights.

FINAL INSTRUCTION NO. 4 - MUNICIPAL LIABILITY





I will now explain the standards for liability, if any, of the City of Storm Lake for actions of the individual defendants.

A municipality, such as the City of Storm Lake, may be held liable for the actions of its police officers, such as defendants Prosser and Erskine, if the police officer's violation of a plaintiff's civil rights occurred as a direct result of a municipal policy, custom, or practice. Therefore, in order for Jeni or Milton Cruz to prevail on an "illegal arrest" claim against the City of Storm Lake, that plaintiff must prove the following two essential elements by the greater weight of the evidence:

One, the plaintiff was deprived of his or her civil rights by one or both of the defendant police officers.

You may find that this element has been proved only if you first find in favor of the plaintiff on his or her claim of "illegal arrest" against one or both of the individual defendants, as explained just above.



Two, the improper actions of the police officer or officers were a result of a policy, custom, or practice of the City of Storm Lake.

A plaintiff may establish municipal liability for a violation of his or her civil rights by proving that his or her civil rights were violated by an action pursuant to "official municipal policy" or misconduct so pervasive among non-policymaking employees of the municipality as to constitute a "custom or usage" with the force of law.

"Official municipal policy" involves a deliberate choice to follow a course of action made from among various alternatives by an official who has the final authority to establish municipal policy.

Alternatively, "custom or usage" is demonstrated by proof of the following:

(1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the municipality's employees;

(2) Deliberate indifference to or tacit authorization of such conduct by the municipality's policymaking officials after notice to the officials of that misconduct; and

(3) The plaintiff's injury by acts pursuant to the municipality's custom, i.e., proof that the custom was the moving force behind the violation of the plaintiff's civil rights.



If a particular plaintiff has failed to prove both of these elements of municipal liability by the greater weight of the evidence, then you cannot hold the City of Storm Lake liable on that plaintiff's claim of "illegal arrest." However, if you find that a particular plaintiff has proved both of these elements of municipal liability by the greater weight of the evidence, then you may hold the City of Storm Lake liable on that plaintiff's claim of "illegal arrest" on the ground that the violation of that plaintiff's civil rights was the result of a policy, custom, or practice of the City of Storm Lake.

FINAL INSTRUCTION NO. 5 - 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, 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 you find that he or she sustained as a direct result of the wrongful conduct of the defendants.

You must award the full amount for any item of damages that a particular plaintiff has proved by the greater weight of the evidence. For example, if you find that one of the plaintiffs has proved damages for physical and mental pain and suffering on his or her claim of an "illegal arrest," then you must award all damages for physical and mental pain and suffering that were a direct result of that "illegal arrest."

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 and you must not award damages under this Instruction by way of punishment (except for punitive damages as defined in Final Jury Instruction No. 8) 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 plaintiff's claim, the type of damages claimed by the plaintiffs is 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. 6 - DAMAGES--SPECIFIC





If you find in favor of Jeni or Milton Cruz, or both, on their claims of "illegal arrest," as explained in Final Jury Instruction No. 3, then you must award each prevailing plaintiff such sum as you find by the greater weight of the evidence will fairly and justly compensate him or her for damages, if any, that you find he or she sustained as a direct result of the violation of his or her civil rights.

The Cruzs each claim damages for past pain and suffering. Past pain and suffering is physical and mental pain and suffering. Physical pain and suffering may include, but is not limited to, unpleasant feelings, bodily distress and uneasiness, bodily suffering, sensations or discomfort. Mental pain and suffering may include, but is not limited to, loss of enjoyment of life. If you award damages for past pain and suffering, you may only award such damages for the time period from August 11, 1999, the date of the alleged "illegal arrest," until May 7, 2000. Evidence of a plaintiff's pain and suffering after May 7, 2000 is relevant to your determination that a plaintiff suffered past pain and suffering. However, you may not award any damages for pain and suffering that a plaintiff suffered after May 7, 2000.

FINAL INSTRUCTION NO. 7 - DAMAGES--NOMINAL



If you find in favor of a plaintiff on his or her claim of "illegal arrest," as explained in Final Jury Instruction No. 3, but you find that his or her damages on that claim have no monetary value, then you must return a verdict for that plaintiff in the nominal amount of One Dollar ($1.00) on that claim.

FINAL INSTRUCTION NO. 8 - PUNITIVE DAMAGES



In addition to the damages mentioned in other instructions, the law permits the jury under certain circumstances to award the injured person punitive damages in order to punish the defendant for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct. However, the law in this area does not permit an award of punitive damages against a municipality, such as the City of Storm Lake, for a violation of constitutional rights by one of its police officers. Therefore, you may award punitive damages, if at all, only against the individual defendants, Mark Prosser and Todd Erskine.

In order to award punitive damages in favor of a particular plaintiff, you must first find in favor of that plaintiff on his or her "illegal arrest" claim against one or both of the individual defendants, as explained in Final Jury Instruction No. 3. You must further find that the conduct of the defendant against whom punitive damages are to be awarded was recklessly and callously indifferent to the plaintiff's civil rights in making the "illegal arrest" of that plaintiff. If you make both of these findings, then, in addition to any other damages to which you find a particular plaintiff is entitled, you may, but are not required to, award that plaintiff an additional amount as punitive damages if you find it is appropriate to punish the defendant or defendants who made the "illegal arrest" or to deter that defendant or those defendants and others from like conduct in the future. Whether to award either, both, or neither of the Cruzs punitive damages against either, both, or neither of the individual defendants and the amount of any punitive damages are within your sound discretion.

Factors that you may consider in awarding punitive damages include, but are not limited to, the following: the nature of the defendant's conduct; the impact of the defendant's conduct on the plaintiff; the relationship between the plaintiff 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 plaintiff's 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.

You may assess punitive damages against either or both of the individual defendants or you may refuse to impose any punitive damages at all.

FINAL INSTRUCTION NO. 9 - 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 9th day of January, 2002.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



JENI CRUZ and MILTON CRUZ,
Plaintiffs,

No. C 00-4002-MWB

vs.



VERDICT FORM

MARK A. PROSSER, individually and in his official capacity as Chief of Police of the Storm Lake Police Department, TODD ERSKINE, individually and in his official capacity as Captain of the Storm Lake Police Department, and CITY OF STORM LAKE,
Defendants.

____________________



I. JENI CRUZ

On the claim of plaintiff Jeni Cruz, we, the Jury, find as follows:









Individual Liability
On the claim of "illegal arrest" against the individual defendants, as explained in Final Jury Instruction No. 3, in whose favor do you find?
_____ Jeni Cruz OR _____ Mark A. Prosser
_____ Jeni Cruz OR _____ Todd Erskine
If you found in favor of both individual defendants, do not answer any more questions regarding the claim of plaintiff Jeni Cruz. Instead, go on to consider the claim of plaintiff Milton Cruz in Section II of this verdict form. However, if you found in favor of plaintiff Jeni Cruz against one or both of the individual defendants, please answer the remaining questions concerning conversion of the detention, municipal liability, and damages as to Jeni Cruz's claim.


Conversion of Detention
If you found in favor of Jeni Cruz against either or both of the individual defendants, on what basis do you find that the detention was converted into an "illegal arrest"? (You may mark either or both alternatives, but you must mark at least one.)
_____ The detention lasted unreasonably long
_____ The officer's conduct was unreasonably intrusive




Municipal Liability
If you found in favor of plaintiff Jeni Cruz against one or both of the individual defendants, do you find that the improper actions of the police officer or officers were a result of a policy, custom, or practice of the City of Storm Lake, as explained in Final Jury Instruction No. 4?
_____ Yes _____ No




Specific or Nominal Damages
What damages, if any, has Ms. Cruz proved by the greater weight of the evidence will fairly and justly compensate her for any damages you find that she sustained as a direct result of the violation of her civil rights, as specific damages are explained in Final Jury Instruction No. 6? (Remember, if you find in favor of Ms. Cruz on her claim of "illegal arrest," as explained in Final Jury Instruction No. 3, but you find that her damages on that claim have no monetary value, then you must instead return a verdict for Ms. Cruz in the nominal amount of One Dollar ($1.00), as explained in Final Jury Instruction No. 7.)
Past pain and suffering $ __________________
OR
Nominal damages $ __________________




Punitive Damages
What amount, if any, do you award in punitive damages against an individual defendant you found liable above on the claim of Jeni Cruz, as punitive damages are explained in Final Jury Instruction No. 8?
Mark A. Prosser $ __________________
Todd Erskine $ __________________






II. MILTON CRUZ

On the claim of plaintiff Milton Cruz, we, the Jury, find as follows:









Individual Liability
On the claim of "illegal arrest" against the individual defendants, as explained in Final Jury Instruction No. 3, in whose favor do you find?
_____ Milton Cruz OR _____ Mark A. Prosser
_____ Milton Cruz OR _____ Todd Erskine
If you found in favor of both individual defendants, do not answer any more questions regarding the claim of plaintiff Milton Cruz. Instead, sign the verdict form and notify the Court Security Officer that you have reached a verdict. However, if you found in favor of plaintiff Milton Cruz against one or both of the individual defendants, please answer the remaining questions concerning conversion of the detention, municipal liability, and damages as to Milton Cruz's claim.


Conversion of Detention
If you found in favor of Milton Cruz against either or both of the individual defendants, on what basis do you find that the detention was converted into an "illegal arrest"? (You may mark either or both alternatives, but you must mark at least one.)
_____ The detention lasted unreasonably long
_____ The officer's conduct was unreasonably intrusive




Municipal Liability
If you found in favor of plaintiff Milton Cruz against one or both of the individual defendants, do you find that the improper actions of the police officer or officers were a result of a policy, custom, or practice of the City of Storm Lake, as explained in Final Jury Instruction No. 4?
_____ Yes _____ No




Specific or Nominal Damages
What damages, if any, has Mr. Cruz proved by the greater weight of the evidence will fairly and justly compensate him for any damages you find that he sustained as a direct result of the violation of his civil rights, as specific damages are explained in Final Jury Instruction No. 6? (Remember, if you find in favor of Mr. Cruz on his claim of "illegal arrest," as explained in Final Jury Instruction No. 3, but you find that his damages on that claim have no monetary value, then you must instead return a verdict for Mr. Cruz in the nominal amount of One Dollar ($1.00), as explained in Final Jury Instruction No. 7.)
Past pain and suffering $ __________________
OR
Nominal damages $ __________________




Punitive Damages
What amount, if any, do you award in punitive damages against an individual defendant you found liable above on the claim of Milton Cruz, as punitive damages are explained in Final Jury Instruction No. 8?
Mark A. Prosser $ __________________
Todd Erskine $ __________________










Date: ________________ Time: ________________





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