Pepper spray plaintiff gets no damages after winning excessive force verdict

There are some losses that a client will never understand. The lawyer may understand, but the client will not. This is one of those cases. The Court of Appeals finds that a man who was unlawfully pepper-sprayed is not entitled to any damages for his pain and suffering.

The case is Girbes-Pierce v. City of New York, a summary order issued on March 17. Plaintiff went to trial on his excessive force case against the police. The found that the police did use excessive force, which means that plaintiff won the case. But the jury also awarded plaintiff no money in damages. If you know anything about pepper spray, you know it hurts like the devil once it gets in your eyes. A former client once told me that the problem is that you instinctively rub your eyes when they are pepper sprayed, which only makes things worse. How is it possible that plaintiff gets no money for this, and if the jury decided the case was worthless, why can't the Court of Appeals change that result?

In federal court, we trust the jury to make the correct decision. When the plaintiff wins a trial, the defendant often takes up an appeal, arguing that the jury got it wrong and that the overwhelming weight of the evidence compelled the jury to find for the defendant. Those arguments rarely prevail, since the jury is presumed sufficient competent to weigh the evidence on its own. One exception to this rule is when the jury awards the plaintiff too much money in damages; in that instance, the trial court and the Court of Appeals have authority to reduce the damages to bring the final number in line with comparable cases. But that is a one-way street. When the jury does not award enough money, the federal courts provide very limited recourse. Only in extreme cases will the federal courts order a new trial on the ground that the jury did not award enough money (such as if the plaintiff has undisputed and documented medical injuries and the jury for some reason awards no money).

The district court summarized plaintiff's claims this way:

According to Girbes-Pierce’s version of events, the incident began when his arm was grabbed and he thought he was being mugged, and only when he was pepper-sprayed and handcuffed did he realize that Sikorski and Rule were police officers. He testified that before he was pepper-sprayed he was hit, punched, pushed, and kicked. Girbes-Pierce also testified that he tried to protect himself during the incident by curling up in a fetal position, keeping his arms up to block his neck and face, and screaming “call the police.”

In this case, plaintiff admits that he did not testify about any injuries attributable to the use of pepper spray. I do not know why that would be so; maybe plaintiff's lawyer overlooked that line of questions in handling the direct examination. But, plaintiff argues on appeal, the jury should not have ignored eyewitness testimony about the effects the pepper spray had on plaintiff, including the fact that he was moaning in pain. Is not the moaning sufficient evidence of pain and suffering sufficient to warrant damages for pain and suffering? Yes, the Court of Appeals says, but that does not mean that plaintiff suffered anything beyond de minimus injury. In other words, moaning in pain by itself is not necessarily enough to recover damages for pain and suffering. Since plaintiff did not receive any diagnosis or treatment of rate pepper spray, and the only objective symptom was plaintiff's red eyes from the pepper spray, the jury was allowed to conclude that his injuries lacked any monetary value.