$1791 for 1791

Here's a fun story that also raises an interesting legal issues:

Longtime county critic Mike Zinna won his First Amendment lawsuit Dec. 9 against former county commissioner Jim Congrove when jurors awarded him $1,791 — a number corresponding with the year the Bill of Rights was ratified.
The former talk-radio host and gadfly blogger alleged Congrove and others violated his First Amendment rights by taking steps to prevent him from speaking at public hearings and to halt his investigations into county government.
The closing arguments concluded Wednesday, Dec. 9, leaving the jury to begin its relatively brief deliberations. During the process, a juror reportedly asked U.S. District Judge Richard Matsch for the effective year of the First Amendment. The jurors returned to the courtroom shortly afterward to deliver their verdict.
While that's a fun damages award, there's no doubt an argument that the jury awarded nominal damages.   A jury awards nominal damages when it believes that a person has suffered a rights violation in the abstract, but without suffering any concrete harm.  In other words, "Your rights were violated, but it wasn't like you got a billy club to your head."

Now, before you write to attack me, let me state that my views are different.  Isn't an injury to the Constitution - the Supreme Law of the Land - and actual, concrete, and comprehensible injury?  Yes, we agree.  The federal courts, however, are less protective of the Constitution than we are.  See Carey v. Piphus, 435 U.S. 247 (1978) (holding that in "the absence of proof of actual injury," a plaintiff is "entitled to recover only nominal damages.")

A jury ordinarily awards only $1 in nominal damages cases.  Here, perhaps the jury awarded $1791 just to be cute, or to remind the County of the date of the ratification of the Bill of Rights?

This stuff matters because attorneys' fees under 42 U.S.C. 1988 are not readily available in cases where nominal damages only are awarded.

Fortunately for the plaintiff, the Federal Rules of Evidence prevents lawyers from sneaking into the jury room to determine why they reached the verdict they had reached.

After all, maybe the jury thought the plaintiff suffered $2,000 in damages - but thought he'd really enjoy having a check for $1791.  Juries have done much weirder things.  And, frankly, my gadfly self would much rather have a check for $1791 than $2,000.  It might be economically irrational; but it's cute and I'd like to hang it on my wall.  It's purely speculative to claim that the jury awarded nominal damages only.  We don't know; and the Federal Rules of Evidence say we can't know.

In any event, a very fun hypothetical.

(Hat tip: Allen Chen.)

4 comments:

  Anonymous

9:05 PM

Why do you think this is a nominal damage award. Small, for sure, but nominal?

  Second Circuit Civil Rights Blog

3:36 PM

Seems nominal because the jury did not want award damages for pain and suffering or punitives, but instead wanted to make a point in a very cute way. You can infer that from the $1791.

  Second Circuit Civil Rights Blog

6:42 PM

It seems nominal because it looks like the jury wanted to make a point in a cute way. Normally, $1791 is a decent jury award if you want fees. But if the jury asked the judge for the year the first amendment was adopted and then awards that exact amount in damages, then it looks like a nominal damages award no different from one dollar.

  Anonymous

6:19 AM

Warnock v. Archer, 380 F.3d 1076, 1084 (8th Cir. 2004) (attorney fees awarded where there was compensation of $1,000 that was “real (if modest) compensatory award” - and there was also injunctive relief); Orchano v. Advanced Recovery, Inc. 107 F.3d 94 (2nd Cir. 1997) ($10,500 in compensatory damages where complaint did not specify damages; court vacated fee award of $6,000 and remanded indicating that 100% of the $37,020.88 loadstar may be appropriate