Harris v. Rambosk et al

Filing 256

Draft Jury Instructions. (TLP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT DALE HARRIS,
Plaintiff,
v.

Case No:

2:18-cv-17-JES-MRM

KASEY
P.
WINGO,
individually,
MICHAEL
D.
CHAPMAN, individually,
Defendants.

________________________________
DRAFT
COURT’S INSTRUCTIONS TO THE JURY
Members of the jury:
It is my duty to instruct you on the rules of law that you
must use in deciding this case.
When I have finished, you will hear the closing arguments of
counsel,

and

will

then

go

to

the

jury

room

discussions, sometimes called deliberations.

and

begin

your

When you begin your

deliberations, you will each receive a copy of these instructions.
I am going to read the instructions to you now so that you will
know the applicable legal principles when you hear the closing
arguments of the attorneys.

1

Preliminary Instructions
Your decision must be based only on the evidence presented
here. You must not be influenced in any way by either sympathy for
or prejudice against anyone.
You must follow the law as I explain it – even if you do not
agree with the law – and you must follow all my instructions as a
whole. You must not single out or disregard any of the instructions
on the law.
As I said before, you must consider only the evidence that I
have admitted in the case. Evidence includes the testimony of
witnesses and the exhibits admitted. But, anything the lawyers say
is not evidence and is not binding on you.
You should not assume from anything I have said that I have
any opinion about any factual issue in this case. Except for my
instructions to you on the law, you should disregard anything I
may have said during the trial in arriving at your own decision
about the facts.
Your own recollection and interpretation of the evidence is
what matters.
In considering the evidence you may use reasoning and common
sense to make deductions and reach conclusions. You should not be
concerned about whether the evidence is direct or circumstantial.

2

“Direct evidence” is the testimony of a person who asserts
that he or she has actual knowledge of a fact, such as an
eyewitness.
“Circumstantial evidence” is proof of a chain of facts and
circumstances that tend to prove or disprove a fact. There is no
legal difference in the weight you may give to either direct or
circumstantial evidence.

In this case, you have been permitted to take notes during
the trial.

Most of you – perhaps all of you – have taken advantage

of that opportunity.
during deliberations.

You must use your notes only as a memory aid
You must not give your notes priority over

your independent recollection of the evidence.

And you must not

allow yourself to be unduly influenced by the notes of other
jurors.
I emphasize that notes are not entitled to any greater weight
than your memories or impressions about the testimony.

When I say you must consider all the evidence, I do not mean
that you must accept all the evidence as true or accurate. You
should decide whether you believe what each witness had to say,
and how important that testimony was. In making that decision you
may believe or disbelieve any witness, in whole or in part. The

3

number

of

witnesses

testifying

concerning

a

particular

point

doesn’t necessarily matter.
To decide whether you believe any witness I suggest that you
ask yourself a few questions:
•

Did the witness impress you as one who was telling
the truth?

•

Did the witness have any particular reason not to
tell the truth?

•

Did the witness have a personal interest in the
outcome of the case?

•

Did the witness seem to have a good memory?

•

Did the witness have the opportunity and ability to
accurately observe the things he or she testified
about?

•

Did the witness appear to understand the questions
clearly and answer them directly?

•

Did

the

witness’s

testimony

differ

from

other

testimony or other evidence?

You should also ask yourself whether there was evidence that
a witness testified falsely about an important fact. And ask
whether there was evidence that at some other time a witness said
or did something, or did not say or do something, that was
different from the testimony the witness gave during this trial.
4

But keep in mind that a simple mistake does not mean a witness
was not telling the truth as he or she remembers it. People
naturally tend to forget some things or remember them inaccurately.
So, if a witness misstated something, you must decide whether it
was because of an innocent lapse in memory or an intentional
deception. The significance of your decision may depend on whether
the misstatement is about an important fact or about an unimportant
detail.

When

technical

or

other

specialized

knowledge

might

be

helpful, a person who has special training or experience in that
field is allowed to state an opinion about the matter.
does not mean you must accept the witness’s opinion.

But that

As with any

other witness’s testimony, you must decide for yourself whether to
rely upon the opinion.
When a witness is being paid for reviewing and testifying
concerning the evidence, you may consider the possibility of bias
and should view with caution the testimony of such witness where
court

testimony

is

given

with

regularity

and

represents

a

significant portion of the witness’s income.

In this case it is the responsibility of Mr. Harris as
Plaintiff

to

prove

every

essential

5

part

of

his

claim

by

a

“preponderance of the evidence.” This is sometimes called the
“burden of proof” or the “burden of persuasion.”
A “preponderance of the evidence” simply means an amount of
evidence that is enough to persuade you that the Mr. Harris’s claim
is more likely true than not true.
If the proof fails to establish any essential part of a claim
or contention by a preponderance of the evidence, you should find
against Mr. Harris.
In

deciding

whether

any

fact

has

been

proved

by

a

preponderance of the evidence, you may consider the testimony of
all of the witnesses, regardless of who may have called them, and
all of the exhibits received in evidence, regardless of who may
have produced them.
If the proof fails to establish any essential part of the Mr.
Harris’s claim by a preponderance of the evidence, you should find
for the Deputy as to that claim.

Defendants assert affirmative defenses in this case.

Even if

Mr. Harris proves his claims by a preponderance of the evidence,
a Defendant can prevail in this case if he proves an affirmative
defense by a preponderance of the evidence.

When more than one

affirmative defense is involved, you should consider each one
separately.
Mr.

Harris’s

I caution you that Defendants do not have to disprove
claims,

but

if

Defendants
6

raise

an

affirmative

defense, the only way they can prevail on that specific defense is
if they prove that defense by a preponderance of the evidence.

Introduction to Claims By Mr. Harris
Mr. Harris has brought claims against Deputy Wingo and Deputy
Chapman individually.

While the claims against each are similar,

you must consider each claim against each deputy separately.

The

legal principles which apply to the claims, however, are the same,
and therefore I will be discussing the law governing similar claims
at the same time.
Mr.

Harris

brings

claims

arising

from

the

events

which

occurred outside the storage facility on April 4, 2014.

Mr.

Harris does not assert a claim of misconduct when the deputies
first approached him and began a discussion with him.

Mr. Harris

does assert, however, that as this initially lawful interaction
continued, Deputy Wingo and Deputy Chapman engaged in various acts
of misconduct which violated his rights.

Mr. Harris alleges both

federal law claims and state law claims, which I will now explain.

Federal Claims by Mr. Harris
A. Federal False Arrest Claims
In Count II of the Amended Complaint, Mr. Harris brings a
federal claim against Deputy Wingo for false arrest.
7

In Count V,

Mr. Harris brings a federal claim against Deputy Chapman for false
arrest.

More specifically, Mr. Harris alleges that Deputy Wingo

and Deputy Chapman, while acting under color of law, intentionally
committed acts that violated his constitutional right under the
Fourth Amendment to the United States Constitution not to be
arrested without probable cause.
The

Fourth

Amendment

to

the

United

States

Constitution

provides that every person has the right not to be arrested unless
the officer has probable cause to do so.
Mr.

Harris

must

prove

each

of

the

To succeed on this claim,
following

facts

by

a

preponderance of the evidence:
First:

Deputy Wingo and Deputy Chapman intentionally

committed acts that violated Mr. Harris’s constitutional
right not to be arrested unless there is probable cause
to do so;
Second:

Deputy Wingo’s and Deputy Chapman’s

conduct

caused Mr. Harris injury; and
Third: Deputy Wingo and Deputy Chapman acted under color
of law.
For the first element, Mr. Harris claims that he was arrested
without probable cause. A deputy may arrest a person without a
warrant whenever the facts and circumstances within his knowledge,
based

on

reasonably

trustworthy

information,

would

cause

a

reasonable officer to believe that the person has committed, is
8

committing, or is about to commit a criminal offense.

Under

Florida law, it is a criminal offense for any person to resist or
fail or refuse to comply with a lawful command or direction from
a police officer who is engaged in the lawful performance of a
legal duty.

For the second element, Deputy Wingo’s and Deputy Chapman’s
conduct caused Mr. Harris injury if Mr. Harris would not have been
injured

without

the

Deputies’

conduct

and

the

injury

was

a

reasonably foreseeable consequence of the Deputies’ conduct.

For the third element, you must decide whether the Deputies
acted under color of law.

The parties agree that both Deputy Wingo

and Deputy Chapman were acting under color of law, so you should
accept that as a proven fact.

If you find Mr. Harris has proven each fact that he must
prove, you must decide the issue of his damages.

I will give you

instructions relating to damages in a few moments.

If you find

that Mr. Harris has not proven each of these facts, then you must
find for Deputy Wingo and Deputy Chapman.

9

B. Federal Excessive Force Claims
Also in Count II of the Amended Complaint, Mr. Harris brings
a

federal

claim

against

Deputy

Wingo

for

excessive

force.

Similarly, in Count V, Mr. Harris brings a federal claim against
Deputy Chapman for excessive force. Mr. Harris alleges that Deputy
Wingo

and

Deputy

Chapman,

while

acting

under

intentionally committed acts that violated

color

of

law,

his constitutional

right to be free from the use of excessive or unreasonable force
during an arrest.
To succeed on this claim, Mr. Harris must prove each of the
following facts by a preponderance of the evidence:
First: Deputy Wingo and Deputy Chapman intentionally
committed acts that violated Mr. Harris’s constitutional
right not to be subjected to excessive or unreasonable
force during an arrest;
Second:

Deputy

Wingo’s

and

Deputy

Harris’s

conduct

caused Mr. Harris injury; and
Third: Deputy Wingo and Deputy Chapman acted under color
of law.

For the first element, Mr. Harris claims that Deputy Wingo
and Deputy Chapman used excessive force when arresting him. The
Fourth Amendment’s right to be free of unreasonable searches and
seizures includes the right to be free from the use of excessive
10

force in the course of an arrest, even if the arrest is otherwise
valid.

When making a lawful arrest, an officer has the right to

use reasonably necessary force to complete the arrest.

If the

arrest is unlawful, an officer has no right to use any amount of
force.

Whether an officer has used excessive force depends on the

facts and circumstances of each particular case.

The issue is

whether the totality of the circumstances justified the amount of
force used.

The reasonableness of the use of force is evaluated

under an objective inquiry that pays careful attention to the
facts and circumstances of each case.

The reasonableness of a

particular use of force is judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.

You must assess whether the officer’s actions were

objectively reasonable based on the information the officer had
when the conduct occurred.

The circumstances to consider include

the relationship between the need for the use of force and the
amount of force used; the extent of the Mr. Harris’s injury; any
effort made by the officer to temper or limit the amount of force;
the severity of the crime at issue; the threat reasonably perceived
by the officer; and whether the Mr. Harris was actively resisting.
You must decide whether the force Deputy Wingo and Deputy Chapman
used in making the arrest was excessive or unreasonable based on
the degree of force a reasonable and prudent law enforcement
officer would have applied in making the arrest under the same
11

circumstances. The Deputies’ underlying intent or motivation is
not relevant.

For the second element, Deputy Wingo’s and Deputy Chapman’s
conduct caused Mr. Harris injury if Mr. Harris would not have been
injured without the Deputies’ conduct and the injuries were a
reasonably foreseeable consequence of the Deputies’ conduct.

For the third element, you must decide whether the Deputies
acted under color of law.

The parties agree that both Deputy Wingo

and Deputy Chapman were acting under color of law, so you should
accept that as a proven fact.

If you find Mr. Harris has proven each element that he must
prove, you must decide the issue of his damages, which I will
discuss in a moment. If you find that Mr. Harris has not proven
each of these elements, then you must find for Deputy Wingo and
Deputy Chapman.

C. Federal Malicious Prosecution Claims
In Count III of the Amended Complaint, Mr. Harris brings a
federal claim against Deputy Wingo for malicious prosecution.

In

Count VI, Mr. Harris brings a federal claim against Deputy Chapman
for malicious prosecution. Mr. Harris alleges that Deputy Wingo
12

and Deputy Chapman, while acting under color of law, maliciously
caused criminal proceedings to be commenced or continued against
Mr. Harris without probable cause, and because of those proceedings
Mr. Harris was unlawfully seized in violation of his rights under
the Fourth Amendment to the United States Constitution.
To succeed on this claim, Mr. Harris must prove each of the
following facts by a preponderance of the evidence:
First: Deputy Wingo and Deputy Chapman caused a judicial
criminal proceeding to be commenced or continued against
Mr. Harris;
Second:
malice

Deputy
and

Wingo

without

and

Deputy

probable

Chapman

cause

in

acted

with

commencing

or

continuing the judicial criminal proceeding;
Third: The judicial criminal proceeding terminated in
Mr. Harris’s favor;
Fourth:

Deputy Wingo’s and Deputy Chapman’s

conduct

caused Mr. Harris injury;
Fifth: Mr. Harris was unlawfully seized as a result of
the judicial criminal proceeding; and
Sixth: Deputy Wingo and Deputy Chapman acted under color
of law.

For the first element, a judicial criminal proceeding does
not begin until Mr. Harris is arraigned before a judge or the State
13

Attorney’s Office files a charging document, or a formal arrest
warrant is issued.

For the second element, you must decide whether Deputy Wingo’s
and

Deputy

Chapman’s

actions

causing

the

judicial

criminal

proceeding to be commenced or continued were taken with malice and
without probable cause. To prove malice, Mr. Harris must show that
the Deputies’ actions were intentional and without justification
or

excuse.

circumstances

Probable
within

cause
Deputy

exists

whenever

Wingo’s

and

the

Deputy

facts

and

Chapman’s

knowledge, based on reasonably trustworthy information, would
cause a reasonable officer to believe that the person has committed
or is committing a criminal offense.

For the third element, the parties agree that the state
judicial criminal proceeding terminated in Mr. Harris’s favor, so
you should accept that as a proven fact.

For the fourth element, Deputy Wingo’s and Deputy Chapman’s
conduct caused Mr. Harris injury if Harris would not have been
injured without the Deputies’ conduct and the injuries were a
reasonably foreseeable consequence of the Deputies’ conduct.

14

For the fifth element, you must decide whether Mr. Harris was
unlawfully seized as a result of the criminal proceeding.

A

seizure under the Fourth Amendment occurs when there is an undue
restraint placed on an individual’s personal liberty. This seizure
must have occurred after the beginning of Mr. Harris’s judicial
criminal proceeding.

For the sixth element, you must decide whether Deputy Wingo
and Deputy Chapman acted under color of law.

The parties agreed

that both Deputy Wingo and Deputy Chapman were acting under color
of law, so you should accept that as a proven fact.

If you find Mr. Harris has proven each element that he must
prove, you must decide the issue of his damages. If you find that
Mr. Harris has not proven each of these elements, then you must
find for Deputy Wingo and Deputy Chapman.

D. First Amendment Retaliation Claim
In Count XIII of the Amended Complaint, Mr. Harris brings a
federal claim against Deputy Wingo and Deputy Chapman for First
Amendment retaliation.

Mr. Harris alleges that Deputy Wingo and

Deputy Chapman, while acting under color of law, arrested him in
retaliation for filing a prior complaint with the Collier County
Sheriff’s Office and for questioning why he was stopped outside
15

the storage facility, in violation of the First Amendment to the
United States Constitution.
As a general matter, the First Amendment prohibits a law
enforcement officer from arresting a person in retaliation for
engaging in protected speech or conduct. To succeed on this claim,
Mr.

Harris

must

prove

each

of

the

following

facts

by

a

preponderance of the evidence:
First:

Mr.

Harris’s

speech

or

conduct

was

constitutionally protected by the First Amendment;
Second: Mr. Harris’s protected speech or conduct was the
cause of Deputy Wingo’s and Deputy Chapman’s decision to
arrest Mr. Harris;
Third: Deputy Wingo’s and Deputy Chapman’s arrest of Mr.
Harris would likely deter a person of ordinary firmness
from engaging in similar protected speech or conduct;
Fourth: Deputy Wingo and Deputy Chapman acted without
probable cause to arrest Mr. Harris; and
Fifth: Deputy Wingo and Deputy Chapman acted under color
of law.

For the first element, Mr. Harris asserts that his protected
First Amendment conduct was his previous filing of a complaint
with the Collier County Sheriff’s Office and his protected First
Amendment speech was his conversation with Deputy Wingo and Deputy
16

Chapman which questioned the basis of his being stopped.

A person

has a First Amendment right to file a complaint about a deputy
with a sheriff’s office.

Additionally, the parties agree that the

First Amendment protects the statements by Mr. Harris outside the
storage facility.

For the second element, Mr. Harris must establish that his
arrest was caused by his protected First Amendment speech or
conduct.

In other words, Mr. Harris must show that Deputy Wingo

and Deputy Chapman would not have arrested Mr. Harris but for his
previous filing of the complaint with the sheriff’s office or his
questioning of the basis for his stop outside the storage facility.

For the third element, Mr. Harris must show that the Deputies’
conduct in making an arrest would have likely deterred a person of
ordinary firmness from the exercise of First Amendment rights.
This test is an objective one, not subjective.

Therefore, the

question is not whether Mr. Harris himself would be deterred,
although

how

Mr.

Harris

acted

might

be

evidence

of

what

a

reasonable person would have done.

For the fourth element, Mr. Harris must show that the Deputies
did not have probable cause to arrest him.

As I stated before,

probable cause exists whenever the facts and circumstances within
17

Deputy Wingo’s and Deputy Chapman’s knowledge, based on reasonably
trustworthy

information,

would

cause

a

reasonable

officer

to

believe that the person has committed or is committing a criminal
offense.

For the fifth element, you must decide whether the Deputies
acted under color of law.

The parties agreed that both Deputy

Wingo and Deputy Chapman were acting under color of law, so you
should accept that as a proven fact.

If you find Mr. Harris has proven each of the elements he
must prove, you must then decide the issue of Mr. Harris’s damages,
which I will discuss in a moment.

However, if you find that Mr.

Harris did not prove each of the facts he is required to prove, or
if

you

find

that

Deputy

Wingo

and

Mr.

Chapman

proved

their

contention, then you must find for Deputy Wingo and Deputy Chapman.

State Claims by Mr. Harris

Mr. Harris has also brought state law claims against Deputy
Wingo and Deputy Chapman. I will explain those state law claims
now.

18

A. State Malicious Prosecution Claims
In Count VI of the Amended Complaint, Mr. Harris brings a
state-law claim of malicious prosecution against Deputy Wingo.
Count VII,

Mr. Harris

In

brings a state-law claim of malicious

prosecution against Deputy Chapman.
Mr. Harris alleges that Deputy Wingo and Deputy Chapman
maliciously

and

without

probable

cause

filed

and

continued

judicial criminal proceedings against him which later terminated
in his favor and which caused him harm.
To succeed on this claim, Mr. Harris must prove each of the
following facts by a preponderance of the evidence:
First: A judicial criminal proceeding was commenced or
continued against Mr. Harris;
Second: Deputy Wingo and Deputy Chapman were the legal
cause of the judicial criminal proceeding;
Third: The judicial criminal proceeding terminated in
Mr. Harris’s favor.
Fourth:

Deputy

Wingo

and

Deputy

Chapman

acted

with

malice;
Fifth: Deputy Wingo and Deputy Chapman acted without
probable cause for the judicial criminal proceeding;
Sixth: Mr. Harris suffered damage as a result of the
judicial criminal proceeding.

19

For the first element, a judicial criminal proceeding does
not begin until Mr. Harris is arraigned before a judge or the State
Attorney’s Office files a charging document, or a formal arrest
warrant issued.

For the second element, Deputy Wingo and Deputy Chapman are
regarded as having instituted or continued a criminal proceeding
against Mr. Harris if the proceeding resulted directly and in
natural and continuous sequence from Deputies’ actions, so that it
reasonably can be said that, but for their actions, the proceeding
would not have been instituted or continued.

The Deputies are not

regarded as having instituted or continued a criminal proceeding
against another if in good faith they made a full and fair
disclosure of what they knew to the proper authorities and left
the decision to institute or continue the prosecution entirely to
the judgment of the authorities.

As to the third factor, the parties have agreed that the
criminal proceeding terminated in Mr. Harris’s favor, so you should
accept that as a proven fact.

For the fourth element, the Deputies are regarded as acting
maliciously

if,

in

instituting

or

continuing

the

criminal

proceedings against Mr. Harris, they did so for the primary purpose
20

of injuring Mr. Harris, or recklessly and without regard for
whether the proceeding is justified, or for any primary purpose
except to bring Mr. Harris to justice. In determining whether
Deputy Chapman and Deputy Wingo acted maliciously, you may consider
all the circumstances at the time of the conduct complained of,
including the presence or absence of probable cause.

For the fifth element, probable cause means that at the time
of instituting or continuing a criminal proceeding against Mr.
Harris, the facts and circumstances known to the Deputies were
sufficiently strong to support a reasonable belief that Mr. Harris
had committed a criminal offense.

For the sixth element, Deputies Wingo and Chapman’s conduct
caused Mr. Harris injury if Harris would not have been injured
without the Deputies’ conduct, and the injuries were a reasonably
foreseeable consequence of the Deputies’ conduct.

If you find Mr. Harris has proven each element that he must
prove, you must decide the issue of his damages. If you find that
Mr. Harris has not proven each of these elements, then you must
find for Deputy Wingo and Deputy Chapman.

21

B. Battery Claim
In Count XI of the Amended Complaint, Mr. Harris brings a
claim for battery under Florida law against Deputy Wingo and Deputy
Chapman.

Mr. Harris alleges that Deputy Wingo and Deputy Chapman

committed a battery against him during his arrest.

To succeed on

this claim, Mr. Harris must prove each of the following elements
by a preponderance of the evidence:
First: Deputy Wingo and Deputy Chapman intentionally
made harmful or offensive contact with Mr. Harris;
Second: Deputy Wingo’s and Deputy Chapman’s use of force
was excessive;
Third: Deputy Wingo and Deputy Chapman acted in bad
faith, with malicious purpose, or in a manner exhibiting
wanton or willful disregard of human rights or safety.
Fourth:

Deputy Wingo’s and Deputy Chapman’s conduct

caused Mr. Harris injury.

For the second element, Mr. Harris claims that Deputy Wingo
and Deputy Chapman used excessive force.

Under Florida law, a

presumption of good faith attaches to an officer's use of force in
making an arrest, and an officer is liable for damages only where
the force used is clearly excessive. An officer has the right to
use reasonable force to complete an arrest considering all of the
circumstances.
22

For the third element, a law enforcement officer acts in bad
faith or with a malicious purpose if his conduct was committed
with ill will, hatred, spite, or an evil intent. An officer acts
with wanton or willful disregard if he intends to cause damage to
persons

or

property,

or

he

has

a

conscious

and

intentional

indifference to the consequences and with the knowledge that damage
is likely to be done.

For the fourth element, Deputy Wingo’s and Deputy Chapman’s
conduct caused Mr. Harris injury if Harris would not have been
injured without Deputy Wingo’s and Deputy Chapman’s conduct, and
the injuries were a reasonably foreseeable consequence of Deputy
Wingo’s and Deputy Chapman’s conduct.

If you find Mr. Harris has proven each element that he must
prove, you must decide the issue of his damages. If you find that
Mr. Harris has not proven each of these elements, then you must
find for Deputy Wingo and Deputy Chapman.

Damages
If you find for Mr. Harris on any of his claims, you must
consider the issue of damages.
23

You should assess the monetary amount that a preponderance of
the evidence justifies as full and reasonable compensation for all
of Mr. Harris’s damages—no more, no less. You must not impose or
increase these compensatory damages to punish or penalize either
Deputy Wingo or Deputy Chapman. And you must not base these
compensatory damages on speculation or guesswork.
Compensatory damages are not restricted to actual loss of
money—they also cover the physical aspects of the injury. Mr.
Harris does not have to introduce evidence of a monetary value for
intangible things like physical pain. You must determine what
amount will fairly compensate him for those claims. There is no
exact standard to apply, but the award should be fair in light of
the evidence.
You should consider the following elements of damage, to the
extent you find that Mr. Harris has proven them by a preponderance
of the evidence, and no others:
(a) The reasonable value of medical care and supplies
that Mr. Harris reasonably needed and actually obtained,
and the present value of medical care and supplies that
Mr. Harris is reasonably certain to need in the future;
(b)

Mr.

health,

Harris’s
physical

physical
pain

and

injuries,

including

suffering,

ill

disability,

disfigurement, and discomfort, including such physical

24

harm that he is reasonably certain to experience in the
future;
(c) Wages, salary, profits, and the reasonable value of
working

time

that

Mr.

Harris

lost

because

of

his

inability or diminished ability to work, and the present
value of such compensation that Mr. Harris is reasonably
certain to lose in the future because of his inability
or diminished ability to work; and
(d)

Mr.

impairment

Harris’s
of

mental

reputation,

and
and

emotional
personal

distress,

humiliation,

including such mental or emotional harm that he is
reasonably certain to experience in the future; and
(e) The reasonable value of Mr. Harris’s property that
was lost or destroyed because of the Deputies’ conduct.

You may award $1.00 in nominal damages and no compensatory
damages if you find that:
(a) Mr. Harris has submitted no credible evidence of
injury; or
(b) Mr. Harris’s injuries have no monetary value or are
not quantifiable with any reasonable certainty; or
(c) Deputies Wingo and Chapman used both justifiable and
unjustifiable

force

against

25

Mr.

Harris

and

it

is

entirely unclear whether Mr. Harris’s injuries resulted
from the use of justifiable or unjustifiable force.

Anyone who claims loss or damages as a result of an alleged
wrongful act by another has a duty under the law to “mitigate”
those damages—to take advantage of any reasonable opportunity that
may have existed under the circumstances to reduce or minimize the
loss or damage. So, if you find that Deputy Wingo and Deputy
Chapman have proved by a preponderance of the evidence that Mr.
Harris

did

not

seek

out

or

take

advantage

of

a

reasonable

opportunity to reduce or minimize the loss or damage under all the
circumstances, you should reduce the amount of Mr. Harris’s damages
by the amount that he could have reasonably received if he had
taken advantage of such an opportunity.

If you find for Mr. Harris and find that either Deputy Wingo
or Deputy Chapman acted with malice or reckless indifference to
Mr. Harris’s federally protected rights, the law allows you, in
your discretion, to award Mr. Harris punitive (exemplary) damages
as a punishment for Deputy Wingo or Deputy Chapman and as a
deterrent to others.
Mr. Harris must prove by a preponderance of the evidence that
he is entitled to punitive damages.

26

Deputy Wingo or Deputy Chapman acts with malice if their
conduct is motivated by evil intent or motive. Deputy Wingo or
Deputy Chapman acts with reckless indifference to the protected
federal rights of Mr. Harris when Deputy Wingo or Deputy Chapman
engages in conduct with a callous disregard for whether the conduct
violates Mr. Harris’s protected federal rights.
If you find that punitive damages should be assessed, you may
consider the evidence regarding Deputy Wingo’s or Deputy Chapman’s
financial resources in fixing the amount of punitive damages to be
awarded. You may also assess punitive damages against either Deputy
Wingo or Deputy Chapman, or both deputies.

Of course, the fact that I have given you instructions
concerning

the

issue

of

Mr.

Harris’s

damages

should

not

be

interpreted in any way as an indication that I believe that the
Mr. Harris should, or should not, prevail in this case.

During your deliberations, you must not communicate with or
provide any information to anyone by any means about this case.
You may not use any electronic device with access to the internet,
or

any

social

media

such

as

Facebook

(Meta)

or

Twitter

to

communicate to anyone any information about this case or to
conduct any research about this case until I accept your verdict.
In other words, you cannot talk to anyone on the phone, correspond
27

with anyone, or electronically communicate with anyone about this
case.

You can only discuss the case in the jury room with your

fellow jurors during deliberations.

I expect you will inform me

as soon as you become aware of another juror’s violation of these
instructions.
You may not use these electronic means to investigate or
communicate about the case because it is important that you decide
this case based solely on the evidence presented in this courtroom.
Information on the internet or available through social media might
be wrong, incomplete, or inaccurate.

You are only permitted to

discuss the case with your fellow jurors during deliberations
because they have seen and heard the same evidence you have.

In

our judicial system, it is important that you are not influenced
by anything or anyone outside of this courtroom.

Otherwise, your

decision may be based on information known only by you and not
your fellow jurors or the parties in the case. This would unfairly
and adversely impact the judicial process.

Your verdict must be unanimous – in other words, you must all
agree. Your deliberations are secret, and you will never have to
explain your verdict to anyone.
Each of you must decide the case for yourself, but only after
fully considering the evidence with the other jurors. So, you must
discuss the case with one another and try to reach an agreement.
28

While you are discussing the case, do not hesitate to reexamine
your own opinion and change your mind if you become convinced that
you were wrong. But do not give up your honest beliefs just because
others think differently or because you simply want to get the
case over with.
Remember that, in a very real way, you are judges – judges of
the facts. Your only interest is to seek the truth from the
evidence in the case.
When you get to the jury room, choose one of your members to
act as foreperson. The foreperson will direct your deliberations
and speak for you in court.
A verdict form has been prepared for your convenience.
[Explain verdict]
Take the verdict form with you to the jury room. When you
have all agreed on the verdict, your foreperson must fill in the
form, sign it and date it. Then you will return it to the courtroom.
If you wish to communicate with me at any time, please write down
your message or question and give it to the court security officer.
The court security officer will bring it to me and I will respond
as promptly as possible – either in writing or by talking to you
in the courtroom. Please understand that I may have to talk to the
lawyers and the parties before I respond to your question or
message, so you should be patient as you await my response. But I
caution you not to tell me how many jurors have voted one way or
29

the other at that time. That type of information should remain in
the jury room and not be shared with anyone, including me, in your
note or question.
Counsel will now be making their final arguments to you.
Counsel for Mr. Harris will have the opening argument, counsel for
Deputy Wingo and Deputy Chapmen will then have the opportunity to
present arguments, and then counsel for Mr. Harris will have the
opportunity to present a rebuttal argument.

This is proper under

our rules because Mr. Harris has the burden of proving his claims
by a preponderance of the evidence.
In making their arguments, counsel will be commenting on the
testimony that you have heard and the evidence that has been
presented.

They, as you, will be recalling the testimony and

evidence in the case.
you.

They will not intentionally try to mislead

However, if their recollection of the testimony or the

evidence differs from your recollection, you must follow your own
recollection.
These final arguments by counsel are not to be construed by
you as evidence or as the instruction on the law.
these

arguments

are

intended

to

help

you

to

Nevertheless,
understand

the

contentions of each side and you should give the attorneys your
close attention.

30