Franco v. City of Boulder

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SAGE B. FRANCO, Plaintiff, v. CITY OF BOULDER, COLORADO, Defendant.

Civil Action No. 19-cv-02634-MEH

United States District Court, D. Colorado

February 16, 2022

ORDER ON DEFENDANT'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO FED. R. CIV. P. 50, ALTER OR AMEND JUDGMENT PURSUANT TO FED. R. CIV. P. 59(e), IN THE ALTERNATIVE FOR A NEW TRIAL PURSUANT TO FED. R. CIV. P 59(a), OR FOR REMITTITUR

Michael E. Hegarty, United States Magistrate Judge.

Defendant has filed its post-trial motion seeking various forms of relief from the jury verdict and judgment. ECF 143. I held oral argument on these motions on February 14, 2022. I make the following rulings.

BACKGROUND

On September 22, 2017, Boulder police officers detained Seth Franco^[1] in the Dushanbe Tea House in Boulder Colorado. Earlier that day, in Boulder County District Court Seth Franco had pleaded guilty to assault on a police officer. Boulder police officer Michael Marquez, who was the victim of the assault, attended and addressed the court at that sentencing, asking the sentencing judge to impose the maximum penalty provided by the law. The judge sentenced Seth Franco to probation; previously the judge had always given a sentence of incarceration for this crime. The sentence included a condition that Seth Franco not consume alcohol. The sentencing judge warned Seth Franco that he would put Seth Franco in jail or prison if he violated his probation. Officer Marquez listened to that courtroom colloquy. Then, Officer Marquez and Seth Franco saw each other immediately after the sentencing, as Seth Franco was walking away from the courthouse and Officer Marquez was in his police vehicle.

Later that same day, Seth Franco was despondent, believing that the Boulder police were never going to leave him alone (September 22, 2017, was not his first encounter with Boulder police). Several people, including Seth Franco's probation officer, some acquaintances, and some co-workers at the Dushanbe Teahouse (where he was employed) in downtown Boulder contacted Boulder police requesting a welfare check for possible suicidal ideation. Boulder police searched for Seth Franco and, at the same time, investigated the circumstances of his despondency (e.g., speaking to the acquaintances at least twice in a short time frame, including inquiring about his use or possession of alcohol). Boulder police found Seth Franco at the Dushanbe Tea House and immediately detained him, surrounding him with officers and handcuffing him. In the first seconds of the encounter, they cut off his backpack (without resistance from Seth Franco), patted him down, and began asking him questions, with the interrogating officer being only inches from his face. The questioning officer focused on Seth Franco's use of alcohol that day, asking him at least eight or nine times whether he had been drinking. Boulder police eventually led him out of the Dushanbe Teahouse in handcuffs and seated him on a bench. Incidentally, of the twenty-two total Boulder police officers on duty the evening of September 22, 2017, sixteen responded to the Dushanbe Teahouse for the welfare check. This included Officer Marquez, who was in the immediate vicinity of the scene but did not participate in the encounter.

Seven minutes into the encounter, Boulder police searched Seth Franco's backpack and found, among other things, and unopened can of beer and illegal psylocibin mushrooms, possession of which was a crime as well as a violation of his probation. Officer Marquez came into the picture around that time. As Seth Franco was put into an ambulance, Officer Marquez is seen on camera giving a “thumbs up.” The entire encounter, from when Boulder police first found Seth Franco in the Dushanbe Teahouse until he was put into the ambulance, was recorded on numerous body cameras with both video and audio. Seth Franco would eventually spend twelve days in jail until he bonded out.

This civil rights action under 42 U.S.C. § 1983 proceeded to a five-day jury trial the week of October 18, 2021. Seth Franco's brother Sage was the Plaintiff, as representative of the estate, as Seth Franco had, in the interim between the underlying event and trial, taken his own life. Plaintiff's theory was that although Boulder police justified the stop and detention under the law enforcement community caretaking function, their real purpose was arresting Seth Franco for a probation violation, believing that would send him to prison. The facts demonstrated that this arrest, if based on a probation violation, was unconstitutional, as Boulder police do not have the legal authority to arrest for technical probation violations. Because that civil rights violation was not clearly established at the time it occurred, I had granted the several individual police officers' motion for summary judgment under qualified immunity. I permitted a municipal liability claim to proceed to trial, based on the finding that the City of Boulder had never offered its police officers any training whatsoever on arresting someone for a probation violation; that many of the people Boulder police encounter are on probation (meaning this is common and recurring situation Boulder police confront); and that the utter lack of training caused the constitutional violation. The jury returned a verdict in Plaintiff's favor, finding the City of Boulder liable for $3.41 million in damages caused by failing to train its police officers, who, as a result, violated Seth Franco's Fourth Amendment rights.

LEGAL AUTHORITY

Defendant raises several legal theories in seeking post-trial relief. I will address each.

I. Judgment as a Matter of Law, Fed.R.Civ.P. 50(b)

Fed. R. Civ. P. 50(b) governs a trial court's post-verdict review. Judgment as a matter of law under Rule 50 “is appropriate only if the evidence points but one way and is susceptible to no reasonable inferences which may support the nonmoving party's position.” In re: Cox Enters., Inc., 871 F.3d 1093, 1096 (10th Cir. 2017). “Judgment as a matter of law is cautiously and sparingly granted and then only when the court is certain the evidence conclusively favors one party such that reasonable [people] could not arrive at a contrary verdict.” Bill Barrett Corp. v. YMC Royalty Co., 918 F.3d 760, 766 (10th Cir. 2019). A Rule 50(b) movant can only reassert the same grounds for judgment as a matter of law that he first asserted in his pre-deliberation Rule 50(a) motion. See Perez v. El Tequila, LLC, 847 F.3d 1247, 1255 (10th Cir. 2017) (“Arguments presented in a Rule 50(b) motion cannot be considered if not initially asserted in a Rule 50(a) motion.”).

II. Alter or Amend Judgment, Fed.R.Civ.P. 59(e)

Rule 59(e) motions may be granted when “the court has misapprehended the facts, a party's position, or the controlling law.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). After a judgment has entered, however, “the public gains a strong interest in protecting the finality of judgments.” Nelson v. City of Albuquerque, 921 F.3d 925, 929 (10th Cir. 2019). Further, in Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008), the Court held that “Rule 59(e) permits a court to alter or amend a judgment, but it ‘may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.'” (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2810.1, pp. 127-28 (2d ed. 1995)). Rule 59(e) does not apply to sufficiency of the evidence challenges. Elm Ridge Expl. Co., LLC v. Engle, 721 F.3d 1199, 1220 (10th Cir. 2013).

III. Motion for a New Trial, Fed. R. Civ. 59(a)

“A motion for a new trial is generally not regarded with favor, and is granted only with great caution.” United States v. Perea, 458 F.2d 535, 536 (10th Cir. 1972). “‘Courts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done, and the burden of showing harmful error rests on the party seeking the new trial.'” Nosewicz v. Janosko, 857 Fed.Appx. 465, 468 (10th Cir. 2021) (quoting 11 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2803 (3d ed. Apr. 2021 update)). A new trial under Rule 59(a) is available when the district court's decision “rests on an erroneous legal conclusion or lacks a rational basis in the record.” Harmon v. City of Norman, Okla., 981 F.3d 1141, 1146 (10th Cir. 2020). “In deciding a new trial motion based on insufficiency of the evidence, a district court must analyze whether the verdict is clearly, decidedly or overwhelmingly against the weight of the evidence.” Elm Ridge, 721 F.3d at 1216 (quotations omitted). The trial court must “view[ ] all the evidence in the light most favorable to the prevailing party.” Escue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th Cir. 2006). When a defendant contends that the jury's verdict was against the weight of the evidence, the “verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the evidence.” M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 762 (10th Cir. 2009).

The size of the jury's verdict may also be grounds for review. A new trial (or a remittitur) may be granted when a jury award is “so excessive that it shocks the judicial conscience and raises an irresistible inference that passion prejudice, corruption, or other improper cause invaded the trial.” Therrien v. Target Corp., 617 F.3d 1242, 1257 (10th Cir. 2010) (citation omitted). Finally, “[i]t is well settled that mere excessiveness in the amount of an award may be cured by a remittitur, whereas excessiveness which results from jury passion and prejudice may not be so cured. In that case, a new...