Hunt v. Hillsborough County et al

Filing 119


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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION DENNIS HUNT, Plaintiff, vs. DAVID L. PILVER, Defendant. __________________________________/ JURY INSTRUCTION NO. 1 Members of the jury, now that you have heard the evidence and the argument, it becomes my duty to give you the instructions of the Court as to the law applicable to this case. It is your duty as jurors to follow the law as I shall state it to you, and to apply that law to the facts as you find them from the evidence in the case. You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole. Neither are you to be concerned with the wisdom of any rule of law stated by me. Nothing I say in these instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts, but rather yours. Case No: 8:07-CV-1168-T-30TBM 1 You must perform your duties as jurors without bias or prejudice as to any party. The law does not permit you to be governed by sympathy, prejudice, or public opinion. All parties expect that you will carefully and impartially consider all of the evidence, follow the law as it is now being given to you, and reach a just verdict, regardless of the consequences. You will recall that you took an oath promising to do that at the beginning of the trial. 2 JURY INSTRUCTION NO. 2 In deciding the case you must follow and apply all of the law as I explain it to you, whether you agree with that law or not; and you must not let your decision be influenced in any way by sympathy, or by prejudice, for or against anyone. The fact that a governmental entity or agency employee is involved as a party must not affect your decision in any way. A governmental agency employee and all other persons stand equal before the law and must be dealt with as equals in a court of justice. In your deliberations you should consider only the evidence--that is, the testimony of the witnesses and exhibits I have admitted in the record--but as you consider the evidence, both direct and circumstantial, you may make decisions and reach conclusions which reason and common sense lead you to make. "Direct evidence" is the testimony of one who asserts actual knowledge of a fact, such as an eye witness. "Circumstantial evidence" is proof of a chain of facts and circumstances tending to prove, or disprove, any fact in dispute. The law makes no distinction between the weight you may give to either direct or circumstantial evidence. Except for my instructions to you on the law, you should disregard anything I may have said during the trial in arriving at your decision concerning the facts. It is your own recollection and interpretation of the evidence that controls. 3 JURY INSTRUCTION NO. 3 Now, in saying that you must consider all of the evidence, I do not mean that you must accept all of 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. Also, the number of witnesses testifying concerning any particular dispute is not controlling. In deciding whether you believe or do not 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 observe accurately the things he or she testified about? Did the witness appear to understand the questions clearly and answer them directly? Did the witness' testimony differ from other testimony or other evidence? 4 JURY INSTRUCTION NO. 4 You should also ask yourself whether there was evidence tending to prove that the witness testified falsely concerning some important fact; or, whether there was evidence that at some other time the witness said or did something, or failed to say or do something, which was different from the testimony the witness gave before you during the trial. You should keep in mind, of course, that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth as he or she remembers it, because people naturally tend to forget some things or remember other things inaccurately. So, if a witness has made a misstatement, you need to consider whether that misstatement was simply an innocent lapse of memory or an intentional falsehood; and the significance of that may depend on whether it has to do with an important fact or with only an unimportant detail. 5 JURY INSTRUCTION NO. 5 In this case it is the responsibility of the Plaintiff to prove every essential part of the Plaintiff's 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 Plaintiff's claim is more likely true than not true. In deciding whether any fact has been proved by a preponderance of the evidence you may consider the testimony of all 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 Plaintiff's claim by a preponderance of the evidence, you should find for the Defendant as to that claim. 6 JURY INSTRUCTION NO. 6 In this case the Plaintiff Mr. Hunt claims that the Defendant Mr. Pilver, while acting "under color" of state law, intentionally deprived the Plaintiff of the Plaintiff's rights under the Constitution of the United States. Specifically, the Plaintiff claims that while the Defendant was acting under color of authority of the State of Florida, he intentionally violated the Plaintiff's constitutional rights under the First Amendment to the Constitution when the Defendant called security and later agreed to authorize law enforcement to issue a trespass warning to the Plaintiff, all because of the Plaintiff's exercise of the right of free speech. The Defendant denies he violated the Plaintiff's rights in any way, and asserts that the law entitles the Defendant to be protected by the doctrine of qualified immunity. Qualified immunity protects government official from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The Defendant is entitled to qualified immunity if you determine the following: that when the Defendant called security and later agreed to authorize law enforcement to issue trespass warning to the Plaintiff (1) the Defendant was performing a discretionary job function that was authorized by his superiors at the Law Library; and (2) the Defendant in fact was motivated at least in part, by lawful 7 considerations. The Defendant is entitled to qualified immunity even if his actions were a mere mistake in judgment. The law provides that a person may sue in this Court for an award of money damages against anyone who, "under color" of any state law or custom, intentionally violates the Plaintiff's rights under the Constitution of the United States. In order to prevail on this claim, the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: S e c o n d: That the Plaintiff engaged in speech activity by attending the Law Library; That such speech activity was a substantial or motivating factor in the Defendant's decision to call security and request that law enforcement issue a trespass warning to the Plaintiff; and That the Defendant's acts were the proximate or legal cause of damages sustained by the Plaintiff. Third: In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues. In order to prove that the Plaintiff's protected speech activities were a "substantial or motivating" factor in the Defendant's decision, the Plaintiff does not have to prove that the protected speech activities were the only reason the Defendant acted against the Plaintiff. It is sufficient if the Plaintiff proves that the Plaintiff's protected speech activities were a determinative consideration that made a difference in the Defendant's decisions to call security and later to authorize law enforcement to issue a trespass warning. 8 Finally, for damages to be the proximate or legal result of wrongful conduct, it must be shown that, except for such conduct, the damages would not have occurred. If you find in the Plaintiff's favor with respect to each of the facts that the Plaintiff must prove, you must then decide whether the Defendant has shown by a preponderance of the evidence that the Defendant would have called security and later agreed to authorize law enforcement to issue a trespass warning to the Plaintiff even in the absence of the protected speech activity. If you find that the Defendant called security and later agreed to authorize law enforcement to issue a trespass warning to the Plaintiff for reasons apart from the protected speech activity, then your verdict should be for the Defendant. If you find for the Plaintiff and against the Defendant, you must then decide the issue of Plaintiff's damages. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages--that is, to take advantage of any reasonable opportunity that may have existed 9 under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of an opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity. 10 JURY INSTRUCTION NO. 7 A library is a place dedicated to quiet, to knowledge, and to beauty. It is a legitimate government interest to preserve a library as a sanctuary for reading, writing and quiet contemplation. To preserve that legitimate interest, the right to free speech in a library is subject to restriction. The right to receive information in a library is not unfettered and may give way to significant countervailing interests. 11 JURY INSTRUCTION NO. 8 Of course, the fact that I have given you instructions concerning the issue of Plaintiff's damages should not be interpreted in any way as an indication that I believe that the Plaintiff should, or should not, prevail in this case. Any verdict you reach in the jury room must be unanimous. In other words, to return a verdict you must all agree. Your deliberations will be secret; you will never have to explain your verdict to anyone. It is your duty as jurors to discuss this case with one another in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after full consideration of the evidence with the other members of the jury. While you are discussing the case do not hesitate to re-examine your own opinion and change your mind if you become convinced that you were wrong. But do not give up your honest beliefs solely because the others think differently or merely 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. 12 JURY INSTRUCTION NO. 9 When you go to the jury room to begin your deliberations, you should first select of your members to act as your foreperson. The foreperson will preside over your deliberations and will speak for you here in court. You will then discuss the case with your fellow jurors to reach unanimous agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so 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 opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict, but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict. When you have reached unanimous agreement on a verdict, your foreperson will fill out the Verdict Form and will sign it. The foreperson will then advise the court security officer that you have reached a verdict. If it becomes necessary during your deliberations to communicate with me, you may send a folded note through the court security officer, signed by one of you. Do not disclose 13 the content of your note to the court security officer. No member of the jury should ever attempt to communicate with me except by a signed writing, and I will communicate with any member of the jury on anything concerning the case only in writing or orally here in open court. You are not to tell anyone--including me--how the jury stands, numerically or otherwise, until you have reached a unanimous verdict or I have discharged you. If you do send a note to me containing a question or request for further direction, please bear in mind that a response takes considerable time and effort. Before giving you an answer or direction I must first notify counsel and bring them back to the court. I must confer with them, listen to arguments, research the legal authorities, if necessary, and reduce the answer or direction to writing. In some instances jurors request that certain testimony be read to them. This cannot be done as it is inappropriate for the court to single out testimony. In those circumstances you must rely upon your own recollection. 14

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