IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



ANN MARIE CHRISTENSON,
Plaintiff, No. C 97-3066-MWB
vs.



PRELIMINARY

AND FINAL

INSTRUCTIONS TO THE JURY

CITY OF MASON CITY, IOWA, and JAMISON GILBERT,
Defendants.

____________________

TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - GENERAL

NO. 3 - ELEMENTS OF CLAIMS

NO. 4 - DUTY OF JURORS

NO. 5 - ORDER OF TRIAL

NO. 6 - DEFINITION OF EVIDENCE

NO. 7 - CREDIBILITY OF WITNESSES

NO. 8 - STIPULATED FACTS

NO. 9 - DEPOSITIONS

NO. 10 - INTERROGATORIES

NO. 11 - OBJECTIONS

NO. 12 - BENCH CONFERENCES

NO. 13 - NOTE-TAKING

NO. 14 - BURDEN OF PROOF

NO. 15 - ADMONITION

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - IMPEACHMENT OF WITNESSES

NO. 3 - ARREST WITHOUT PROBABLE CAUSE

NO. 4 - EXCESSIVE USE OF FORCE

NO. 5 - MUNICIPAL LIABILITY: POLICY, CUSTOM, OR

PRACTICE

NO. 6 - MUNICIPAL LIABILITY: FAILURE TO TRAIN OR

SUPERVISE

NO. 7 - DAMAGES--IN GENERAL

NO. 8 - DAMAGES--SPECIFIC ITEMS

NO. 9 - DAMAGES--NOMINAL

NO. 10 - PUNITIVE DAMAGES

NO. 11 - DELIBERATIONS



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 - GENERAL

The following brief summary of the case is not to be considered evidence or proof of any facts or events in the case. It simply informs you of the factual disputes between the parties.

This is a civil case brought by plaintiff Ann Marie Christenson against two defendants, the City of Mason City, Iowa, and Jamison Gilbert, a police officer with the Mason City Police Department. Christenson alleges that Gilbert violated her constitutional rights by arresting her without probable cause to believe that she had committed a crime and by using excessive force in making the arrest. Christenson also alleges that the City of Mason City failed to have any policy on use of force and that it failed to train and supervise Gilbert sufficiently. The defendants deny these allegations.

You will be asked to resolve the disputes between the parties.



PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF CLAIMS

To help you follow the evidence, here is a brief summary of the elements of plaintiff Christenson's claims.

To win her claim of arrest without probable cause, Christenson must prove the following three essential elements by the greater weight of the evidence:

One, defendant Gilbert arrested Christenson;

Two, the arrest was without probable cause to believe that Christenson had committed a crime;

Three, as a direct result of the arrest without probable cause, Christenson was damaged.

To win her claim of excessive use of force, Christenson must prove the following three essential elements by the greater weight of the evidence:

One, defendant Gilbert used force in the act of arresting Christenson on June 25, 1995;

Two, the use of such force was excessive, because it was not reasonably necessary to arrest Christenson; and

Three, as a direct result of the excessive use of force, Christenson was damaged.

If Christenson has failed to prove all of the above elements by the greater weight of the evidence, your verdict must be for Gilbert and the City of Mason City on Christenson's claim of excessive use of force.

A municipality, such as the City of Mason City, may be held liable for the actions of its police officers, such as defendant Gilbert, if the police officer's violation of a plaintiff's constitutional rights occurred as a direct result of a municipal policy, custom, or practice. Therefore, in order for Christenson to prevail on a claim against the City of Mason City, Christenson must prove the following two essential elements by the greater weight of the evidence:

One, Christenson was deprived of a constitutional right or rights by defendant Gilbert; and

Two, Gilbert's improper actions were a result of a policy, custom, or practice of the City of Mason City.

A municipality, such as the City of Mason City, may also be held liable for the actions of its police officers, such as defendant Gilbert, if the City failed to train and supervise the police officers properly. In order for Christenson to prevail on a claim that the City of Mason City failed to train and supervise defendant Gilbert properly, Christenson must prove the following three essential elements by the greater weight of the evidence:

One, defendant Gilbert violated one or more of Christenson's constitutional rights, either by using excessive force in arresting her or in arresting her without probable cause;

Two, the City failed to train and supervise defendant Gilbert adequately, in such a manner so as to represent a policy or custom of the City showing deliberate indifference by the City to the constitutional rights of its citizens; and

Three, Christenson was injured by the violation of her constitutional rights.

This is only a preliminary outline of the elements of Christenson's claims. At the end of the trial, I will give you final written instructions that explain these claims in greater detail. Because they are more detailed, those final instructions govern on the elements of Christenson's claims.



PRELIMINARY INSTRUCTION NO. 4 - 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. A municipality is entitled to the same fair treatment at your hands as a private individual. All persons, including municipalities, stand equal before the law, and are to be dealt with as equals in this court.

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. 5 - ORDER OF TRIAL

The trial will proceed in the following order:

After I conclude these preliminary instructions, the plaintiff's lawyer may make an opening statement. Next, the defendants' lawyer may make an opening statement. An opening statement is not evidence, but is simply a summary of what the lawyers expect the evidence to be.

The plaintiff will then present evidence and witnesses and the defendants may cross-examine. Following the plaintiff's case, the defendants may present evidence and witnesses and the plaintiff may cross-examine. Following the defendants' case, the plaintiff may take a further opportunity to present additional evidence.

After the evidence is concluded, I will give you the final instructions on the law that you are to apply in reaching your verdict. 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 some 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 in person or testimony previously given, which includes 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.

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.

Finally, just because a witness works in law enforcement or is employed by a governmental subdivision does not mean 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 plaintiff and 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.



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 - BURDEN OF PROOF

In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. Plaintiff Christenson has the burden of proving her claims of by the greater weight of the evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, the evidence is equally balanced, you cannot find that 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. 15 - ADMONITION

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 lawsuit 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 6th day of October, 1998.

_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE



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. I emphasize, however, that the final instructions are not more important than the preliminary instructions, nor are written instructions more important than oral ones. Again, 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 - ARREST WITHOUT PROBABLE CAUSE

Christenson's first claim alleges defendant Gilbert arrested her without probable cause to believe that she had committed a crime. To prevail on this claim, Christenson must prove the following three essential elements by the greater weight of the evidence:

One, defendant Gilbert arrested Christenson.

Two, the arrest was without probable cause to believe that Christenson had committed a crime.

Police officers are not required to have enough evidence to justify a conviction before they make an arrest. However, a police officer must have "probable cause" to believe that a person had committed or was committing an offense. Whether probable cause existed is a commonsense and practical determination that must be based upon the totality of the circumstances. Defendant Gilbert had probable cause to arrest Christenson if, at the moment the arrest was made, the facts and circumstances within his knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent person, that is, a person of reasonable caution, in believing that Christenson had committed or was committing an offense.

To assist you in determining whether defendant Gilbert had probable cause to believe that Christenson had committed or was committing the offense of interference with official acts for which he arrested her, you are advised that an ordinance of the City of Mason City defined the offense as follows:

It shall be unlawful for any person to interfere with, hinder, obstruct or delay any police officer.



Three, as a direct result of the arrest without probable cause, Christenson was damaged.

Christenson's damage is a direct result of the arrest without probable cause if the arrest was a substantial factor in producing the damage and the damage would not have happened except for the arrest. "Substantial" means that the arrest has such an effect in producing damage as to lead a reasonable person to regard it as a cause.



If Christenson has failed to prove any of the above elements by the greater weight of the evidence, then your verdict must be for Gilbert and the City of Mason City on Christenson's claim of arrest without probable cause. However, if you find that Christenson has proved all of these elements by the greater weight of the evidence, then she is entitled to damages in some amount on this claim.



FINAL INSTRUCTION NO. 4 - EXCESSIVE USE OF FORCE

Christenson's second claim alleges defendant Gilbert used excessive force in arresting her. Christenson may assert a claim for excessive use of force whether or not there was probable cause for her arrest. To prevail on this claim, Christenson must prove the following three essential elements by the greater weight of the evidence:

One, defendant Gilbert used force in the act of arresting Christenson on June 25, 1995.

Two, the use of such force was excessive, because it was not reasonably necessary to arrest Christenson.

In determining whether such force was "not reasonably necessary," you must consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether a reasonable officer on the scene, without the benefit of 20/20 hindsight, would have used such force under similar circumstances.

You must consider that police officers are often forced to make judgments about the amount of force that is necessary in circumstances that are tense, uncertain, and rapidly evolving. However, you must consider whether the officer's actions were reasonable in light of the facts and circumstances confronting the officer, without regard to the officer's own state of mind, intention, or motivation.

In the absence of resistance or flight by Christenson, defendant Gilbert had no right to use any force or violence. However, Gilbert was entitled to use sufficient force to meet any resistance by Christenson. Nonetheless, the use of that force must have been reasonable.

Three, as a direct result of the excessive use of force, Christenson was damaged.

Christenson's damage is a direct result of the excessive use of force, if the excessive use of force was a substantial factor in producing the damage and the damage would not have happened except for the excessive use of force. "Substantial" means that the excessive use of force has such an effect in producing damage as to lead a reasonable person to regard it as a cause.

If Christenson has failed to prove any of the above elements by the greater weight of the evidence, then your verdict must be for Gilbert and the City of Mason City on Christenson's claim of excessive use of force. However, if you find that Christenson has proved all of these elements by the greater weight of the evidence, then she is entitled to damages in some amount on this claim.



FINAL INSTRUCTION NO. 5 - MUNICIPAL LIABILITY:

POLICY, CUSTOM, OR PRACTICE

A municipality, such as the City of Mason City, may be held liable for the actions of its police officers, such as defendant Gilbert, if the police officer's violation of a plaintiff's constitutional rights occurred as a direct result of a municipal policy, custom, or practice. Therefore, in order for Christenson to prevail on either of her claims against the City of Mason City on this ground, Christenson must prove the following two essential elements by the greater weight of the evidence:

One, Christenson was deprived of a constitutional right or rights by defendant Gilbert.

You may find that this element has been proved only if you first find in favor of Christenson on either her claim of arrest without probable cause, as explained in Final Instruction No. 3, or her claim of excessive use of force, as explained in Final Instruction No. 4, or both, against defendant Gilbert.



Two, Gilbert's improper actions were a result of a policy, custom, or practice of the City of Mason City.

Christenson may establish municipal liability for a violation her constitutional rights by proving that her constitutional 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 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 governmental 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 governmental entity's employees;

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

(3) The plaintiff's injury by acts pursuant to the governmental entity's custom, i.e., proof that the custom was the moving force behind the constitutional violation.



If Christenson has failed to prove either that she was deprived of a constitutional right or rights by defendant Gilbert or that Gilbert's improper actions were a result of a policy, or a custom or usage, by the greater weight of the evidence, then you cannot hold the City of Mason City liable on Christenson's claims of arrest without probable cause or excessive use of force on the ground that these constitutional violations were the result of a policy, custom, or practice of the City of Mason City. However, if you find that Christenson has proved both of these elements of municipal liability by the greater weight of the evidence, then you may hold the City of Mason City liable on Christenson's claims of arrest without probable cause or excessive use of force, or both, on the ground that these constitutional violations were the result of a policy, custom, or practice of the City of Mason City.

FINAL INSTRUCTION NO. 6 - MUNICIPAL LIABILITY:

FAILURE TO TRAIN OR SUPERVISE

A municipality, such as the City of Mason City, may also be held liable for the actions of its police officers, such as defendant Gilbert, if the City failed to train or supervise the police officers properly. Therefore, in order for Christenson to prevail on either of her claims against the City of Mason City on this ground, Christenson must prove the following three essential elements by the greater weight of the evidence:

One, defendant Gilbert violated one or more of Christenson's constitutional rights.

You may find that this element has been proved only if you first find in favor of Christenson on either her claim of arrest without probable cause, as explained in Final Instruction No. 3, or her claim of excessive use of force, as explained in Final Instruction No. 4, or both, against defendant Gilbert.



Two, the City failed to train or supervise defendant Gilbert adequately, in such a manner so as to represent a policy or custom of the City showing deliberate indifference by the City to the constitutional rights of its citizens.

A city also may be liable for deficient policies regarding hiring and training police officers where the plaintiff proves the following:

(1) the city's hiring and training practices are inadequate;

(2) the city was deliberately indifferent to the rights of others in adopting them, such that the failure to train reflects a deliberate or conscious choice by a municipality; and

(3) an alleged deficiency in the city's hiring or training procedures actually caused the plaintiff's injury.

It is necessary to show that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. Mere negligence is insufficient. In other words, the plaintiff must demonstrate that the city had notice that its procedures were inadequate and likely to result in a violation of constitutional rights.



Three, Christenson was injured by the violation of her constitutional rights.

Christenson was injured by the violation of her constitutional rights, if the violation of her constitutional rights was a substantial factor in producing the damage and the damage would not have happened except for the violation of her constitutional rights. "Substantial" means that the violation of her constitutional rights has such an effect in producing damage as to lead a reasonable person to regard it as a cause.



If Christenson has failed to prove all of the above elements of municipal liability by the greater weight of the evidence, then you cannot hold the City of Mason City liable on Christenson's claims of arrest without probable cause or excessive use of force on the ground that these constitutional violations were the result of the City of Mason City's failure to train or supervise defendant Gilbert properly. However, if you find that Christenson has proved all of these elements of municipal liability by the greater weight of the evidence, then you may hold the City of Mason City liable on Christenson's claims of arrest without probable cause or excessive use of force, or both, on the ground that these constitutional violations were the result of the City of Mason City's failure to train or supervise defendant Gilbert properly.



FINAL INSTRUCTION NO. 7 - 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 Christenson is entitled to damages in accord with the other instructions, you must award her such sum as you find by the greater weight of the evidence will fairly and justly compensate her for any damages you find 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 Christenson has proved. However, a party cannot recover duplicate damages. In other words, do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage on the same claim. Christenson has asserted two separate claims: arrest without probable cause and excessive use of force. You must award full damages for each item of damages on each claim you find Christenson has proved by the greater weight of the evidence. For example, if you find Christenson has proved damages for physical and mental pain and suffering on both her claim of arrest without probable cause and her claim of excessive use of force, you must award all damages for physical and mental pain and suffering that were a direct result of the arrest without probable cause and all damages for physical and mental pain and suffering that were a direct result of the excessive use of force.

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. Future economic damages, such as future prescription expenses, if any, must be reduced to "present value." "Present value" is a sum of money paid now in advance which, together with interest earned at a reasonable rate of return, will compensate the plaintiff for future losses.

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 Instruction No. 10) 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 item of compensatory 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 Questions 3 and 7 of the verdict form, there is a list of the types of damages you may award in this case. The fact that there is a list of the types of damages should not be considered as an indication that you must award damages for each type of damage claimed. You should only award those damages, if any, that Christenson has proved by the greater weight of the evidence.



FINAL INSTRUCTION NO. 8 - DAMAGES--SPECIFIC ITEMS

If you find in favor of Ann Marie Christenson on either her claim of arrest without probable cause, as explained in Final Instruction No. 3, or her claim of excessive use of force, as explained in Final Instruction No. 4, or both, then you must award Christenson such sum as you find by the greater weight of the evidence will fairly and justly compensate her for any damages you find she sustained as a direct result of the violation of her constitutional rights.

Christenson claims damages for the following distinct items of damages, which you must consider separately:

a. The reasonable value of necessary hospital charges, doctor charges, prescriptions and other medical services from the date of injury to the present time.

b. The present value of future prescription medications.

c. The reasonable value of lost wages from the date of injury to the present time.

d. Loss of function of the body from the date of injury to the present time.

e. Future loss of function of the body.

f. Physical and mental pain and suffering from the date of injury to the present time. 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.

g. Future physical pain and suffering. Physical and mental pain and suffering have already been explained to you in this Instruction.

You must enter separate amounts for each type of damages in the verdict form and must not include the same items in more than one category.



FINAL INSTRUCTION NO. 9 - DAMAGES--NOMINAL

If you find in favor of Ann Marie Christenson on either her claim of arrest without probable cause, as explained in Final Instruction No. 3, or her claim of excessive use of force, as explained in Final Instruction No. 4, but you find that her damages on a particular claim have no monetary value, then you must return a verdict for Christenson in the nominal amount of One Dollar ($1.00) on that claim.



FINAL INSTRUCTION NO. 10 - 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 Mason City, for a violation of constitutional rights by one of its police officers. Therefore, you may award punitive damages, if at all, only against defendant Gilbert.

In order to award punitive damages, you must first find in favor of Christenson on either or both of her claims and against defendant Gilbert. You must further find that the conduct of defendant Gilbert, as submitted in Final Instruction No. 3 (arrest without probable cause) or Final Instruction No. 4 (excessive use of force), or both, was recklessly and callously indifferent to Christenson's constitutional rights. If you make both of these findings, then, in addition to any other damages to which you find Christenson is entitled, you may, but are not required to, award Christenson an additional amount as punitive damages if you find it is appropriate to punish defendant Gilbert or to deter him and others from like conduct in the future. Whether to award Christenson punitive damages and the amount of those punitive damages are within your sound discretion.

Factors 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; Christenson'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 defendant Gilbert or you may refuse to impose punitive damages.



FINAL INSTRUCTION NO. 11 - 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, because a verdict must be unanimous. 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. The verdict must be unanimous. 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 forms. 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 when each of you has agreed on the verdicts, your foreperson will fill in the form and date it, all jurors will sign it, and the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 12th day of October, 1998.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION

ANN MARIE CHRISTENSON,
Plaintiff, No. C 97-3066-MWB
vs.





VERDICT FORM
CITY OF MASON CITY, IOWA, and JAMISON GILBERT,
Defendants.

____________________



I. ARREST WITHOUT PROBABLE CAUSE

Question No. 1: On Ann Marie Christenson's claim of arrest without probable cause, as that claim is submitted to you in Final Instruction No. 3, in whose favor do you find?

_____ Ann Marie Christenson _____ Jamison Gilbert



(If you found in favor of defendant Jamison Gilbert in answer to Question No. 1, do not answer any more questions in Division I. Instead, go on to Division II concerning the claim of excessive use of force. However, if you found in favor of Ann Marie Christenson in answer to Question No. 1, please answer the remaining questions in Division I.)



Question No. 2.a.: Do you find that the City of Mason City is liable for defendant Gilbert's improper actions in arresting Christenson without probable cause?

_____ Yes _____ No

b. If you answered "Yes," on which ground do you find the City of Mason City is liable? (Please mark all that apply.)

_______ Deprivation of constitutional rights as a result of a policy of the City of Mason City, as explained in Final Instruction No. 5.



_______ Deprivation of constitutional rights as a result of a custom or usage of the City of Mason City, as explained in Final Instruction No. 5.



_______ Deprivation of constitutional rights as a result of a failure to train or supervise by the City of Mason City, as explained in Final Instruction No. 6.



Question No. 3: What, if any, damages do you find were a direct result of Christenson's arrest without probable cause, as damages are explained to you in Final Instruction No. 7 and Final Instruction No. 8? Remember, any damages you award here must be a direct result only of Christenson's arrest without probable cause; do not award here damages, if any, that are a direct result only of an excessive use of force.
a. Past hospital charges, doctor charges, prescriptions and other medical services $
b. Present value of future prescription medications. $
c. Past lost wages.
d. Loss of function of the body from the date of injury to the present time. $
e. Future loss of function of the body. $
f. Past physical and mental pain and suffering. $
g. Future physical and mental pain and suffering. $



OR



Nominal damages, as nominal damages are explained to you in Final Instruction No. 32. $ _________ (Enter $1.00)





Question No. 4: What amount, if any, do you award as punitive damages for arrest without probable cause, as punitive damages are explained to you in Final Instruction No. 10?

$ _______________



II. EXCESSIVE USE OF FORCE

Question No. 5: On Ann Marie Christenson's claim of excessive use of force, as that claim is submitted to you in Final Instruction No. 4, in whose favor do you find?

_____ Ann Marie Christenson _____ Jamison Gilbert



(If you found in favor of defendant Jamison Gilbert in answer to Question No. 5, do not answer any more questions in Division II. Instead, sign the verdict form and advise the Court Security Officer that you have reached a verdict. However, if you found in favor of Ann Marie Christenson in answer to Question No. 5, please answer the remaining questions in Division II.)



Question No. 6.a.: Do you find that the City of Mason City is liable for defendant Gilbert's improper actions in using excessive force to arrest Christenson?

_____ Yes _____ No

b. If you answered "Yes," on which ground do you find the City of Mason City is liable? (Please mark all that apply.)

_______ Deprivation of constitutional rights as a result of a policy of the City of Mason City, as explained in Final Instruction No. 5.



_______ Deprivation of constitutional rights as a result of a custom or usage of the City of Mason City, as explained in Final Instruction No. 5.



_______ Deprivation of constitutional rights as a result of a failure to train or supervise by the City of Mason City, as explained in Final Instruction No. 6.





Question No. 7: What, if any, damages do you find were a direct result of the use of excessive force to arrest Christenson, as damages are explained to you in Final Instruction No. 7 and Final Instruction No. 8? Remember, any damages you award here must be a direct result only of the use of excessive force to arrest Christenson; do not award here damages, if any, that are a direct result only of an arrest without probable cause.
a. Past hospital charges, doctor charges, prescriptions and other medical services $
b. Present value of future prescription medications. $
c. Past lost wages.
d. Loss of function of the body from the date of injury to the present time. $
e. Future loss of function of the body. $
f. Past physical and mental pain and suffering. $
g. Future physical and mental pain and suffering. $



OR



Nominal damages, as nominal damages are explained to you in Final Instruction No. 32. _________ (Enter $1.00)





Question No. 8: What amount, if any, do you award as punitive damages for excessive use of force, as punitive damages are explained to you in Final Instruction No. 10?

$ _______________







Date: ________________



____________________________

FOREPERSON



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________

JUROR