~,~;~<:’;~;~:.~ ~ ~:~",~:~.:.:’:

Plaintiff,

COMPLAINT

-......>e{., .,-..
~ . :)’ .~:.’," ~ T~ CITY OF ~W YO~, FOLICE }~:~;~ .:~..C:/: :. DEF~T~NT OF ~ CITY OF ~W
’$,5:;w~’’,.v"’i.",.?*.?’~~"..’.;.’. :~,YO~, DETECTI~ C~ST~ MORG~LO,
]’"~~:~ ~,>, ’ ’ S~eld No. 2233, J~ DOES 1-2,
,~:,.,., <,:,,,v.>. S~eld Nos. U~own, ~d ~ FONT~LL&

97 Cir. (Jury Trial Demanded)

!. :’i~:I"i 5""""- ’ :-

Defendants.

~-’

¯ :’: :. ~,..v i ..~ ¯ = .................

r ............................................

x

¯ "!~-(’ .~ i. :

Plaintiff, Debra Ckaolo, by her attorney, Stephen H. Weiner, Esq., for her complaint,.aileges_.
"

-’::::"’.. :i7~ :., .... as follows:

INTRODUCTION 1. Plaintiff, Debra Ciraolo, brings this action, pursuant to 42 U.S.C. § 1983, to redress

:-:. i., :ii!.):-.": .";..the deprivation of her constitutional fights, and for violation of the common law of the State of New

?,,’3,’~’ ~" ’..5,’" ¯ .... ii,.

¯

.~.~1%~:i :~:~:i. :,:: i::.,York. Specifically, on January 21, 1997, members of defendant Police Department of the City of

:::~: >::,,.:.. : New York v~olated Ms C~raolo s conmtut~onal rights protected by the Fourth and Fourteenth

’ ~,. ’,:3"h.:)<’: .,, ". ", . " ¯

..:.:.. ,-.,. ,.:.. : ....., Amendments to the Umted States Constitution, and Arhcle I, Section 12 of the New York State

?~:: -:...’:";~ ,: .

.

. ¯

¯ , 7~ .-7,~,I.,> ~ : ......

.

!’?":-’-.",?:’i!:[’i) . " ’!-’ Constitution, when they arrested her without probable cause, used excessive force during the ,

:;..;, .,-...,.. ’ , ~:~...’..- #~effectuation of her arrest and when, subsequent to her arrest, they subjected her to an utterly

¯ " ..:,: ,~.,.~*.-..: .’ :.::uNustified strip and body cavity search. Shealso brings claims for false arrest, malicious prosecution,
- t;.; t-:;" -"" ’~"i" /"
.- ""-’-" ;" ::- ,:. ’7 .’j.."
. ,., ¢~:-Y ~<.::~:-H~:,and intentional infliction of emotion distress against Julie Fontanella.
:: ...::;:),. _" . : ::
5:..> , ’ ),:’.’:’~ ’;" :,-" °".

2. Defendant Police Department of the City of New York, had in effect at all times relevant herein, policies regarding searches to be conducted of persons ~arrested by its members. In conducting the unconstitutional strip and body cavity search of Ms. Ciraolo, the individual defendants were acting pursuant to official policy.
JURISDICTION AND VENUE 3. Pursuant to 28 U.S.C. §§ 1331 and 1343, jurisdiction is proper as Ms. Ciraolo’s claims arise under federal law. Pursuant to 28 U.S.C. § 1367, jurisdiction is proper as to the claims of Ms. Ciraolo arising under the Constitution and common law of the State of New York. 4. Pursuant to 28 U.S.C. § 1391(b), venue is proper as the acts complained of occurred inthe State of New York, borough of Manhattan.
PARTIES 5. Plaintiff Debra Ciraolo is a citizen of the United States of America. She resides in the State of New York, County of New York at 220 West 13th Street, Apartment 3D. She is a sign language interpreter and consultant. Since 1991, she has run her own business. 6. Defendant Detective Christin Morgillo, shield number 2233, is a member of defendant Police Department of the City of New York. Upon information and belief, at all times relevant herein, she was assigned to the 6th precinct. 7. Defendant Morgillo is sued herein in both her individual and official capacities. At all times relevant herein, defendant Morgillo was acting within the scope Of her employment. 8. Upon information and belief, defendant, Jane Does 1 and 2, shield numbers unknown, are each a member of defendant Police Department of the City of New York.
2

9. Defendant Does are sued herein in both their individual and official capacities. At all times relevant herein, defendant Does were acting within the scope of.their employment.
10. Defendant City of New York, is a municipal corporation organized pursuant to the laws of the State and City of New York. It hasall the powers vested in it by the laws of the State of New York, City of New York, and the Charter of the City of New York. Upon information and belief, at all times relevant herein it was the employer of defendants Morgillo, and Jane Does 1 and 2.
11. Defendant Police Department of the City of New York ("NYPD"), is a duly organized agency of defendant City of New York. -It has all the powers vested in it by the Charter of the City .... of New York. Upon information and belief, at all times relevant herein it was the employer of defendants Morgilio, and Jane Does 1 and 2.
12. Defendant Julie Fontanella is a cousin of plaintiff Debra Ciraolo. Ms. Fontanella resides in the State of New York, County of New York at 220 West 13th Street, Apartment 3B.
13. On March 7, 1997, Ms. Ciraolo filed a Notice of Claim with the Office of the ¯ Comptroller of the City of New York. Said filing occurred within 90 days of the incidents giving rise
to Ms. Ciraolo’s claims. 14. On July l, 1997, Ms. Ciraolo presented herself for examination pursuant to General
Municipal Law § 50-h. 15. At least thirty days have elapsed since Ms. Ciraolo filed her notice of claim pursuant
to General Municipal Law § 50-e. To date, adjustment or payment thereof has been neglected or /I refused.
3

16. This action is commenced within one year of the incidents giving rise to Ms. Ciraolo’s claims.
FACTS 17. For the last seventeen years, plaintiffDebra Ciraolo has resided at 220 West 13th Street, Apartment 3D. 18. In the fall of 1994, plaintiff learned that her cousin, defendant Julie Fontanella, had misappropriated personal property that had belonged to plaintiff’s family. Plaintiff advised Ms. Fontanella, in a telephone conversation, that she had learned of this. misappropriation, and that plaintiff did not desire to see Ms. Fontanella again. 19. A year-and-a-half later, on or about March 27, 1996, defendant Fontanella moved into 220 West 13~ Street, Apartment 3B, on the same floor as Ms. Ciraolo’s apartment. Ms. Fontanella appeared at Ms. Ciraolo"s front door, informed her that she had just moved in, and stated that "I’m going to get you." 20. On March 28, 1996, Ms. Ciraolo went to the 6th Precinct, Which is located at 233 West 10lh Street, New York, New York, and filled out a domestic incident report concerning Ms. Fontanella’s threat. The report described the conduct as "aggravated harassment." Ms. Ciraolo indicated that she did not want her cousin arrested. She was referredto Family Court of the State of New York, County of New York, for a possible order of protection, by Esther Ward, who, upon information and belief was then a Police Detective in charge of domestic cases at the 6th Precinct. Ms. Ciraolo also consulted with Police Detective Paul Suarez, who was then assigned to the 6’h Precinct,
!,,
alOout bringing her complaint in Family Court.

21. On April 19, 1996, plaintiff filed a petition with the Family Court alleging that defendant Fontanella had harassed plaintiff by moving next door and threatening "to get" her. On that same date, Family Court Judge Ruth Jane Zuckerman issued a Temporary Order of Protection on behalf of petitioner Ms. Ciraolo against respondent Ms. Fontanella, which specified that Ms. Fontanella "is excluded from apartment 3D at 220 West 13th Street."
22. On April 30, 1996, Ms. Ciraolo went to the 6th Precinct and filled out another domestic incident report because a man standing by defendant Fontanella’s doorway, whom Ms. Ciraolo believed to be a friend of Ms. Fontanella, had glared at her in a threatening manner.
23. On May 17, 1996, Ms. Ciraolo and Ms. Fontanella appeared in Family Court ---concerning Ms. Ciraolo’s Petition. The Order of Protection was extended until June 21, 1996.
Defendant Fontanella also advised Police Detective Paul Suarez, that she would move out of 220 West 13th Street at the termination of Ms. Fontanella’s lease, in March 1997. Detective Suarez advised Ms. Ciraolo of Ms. Fontanella’s statement to him.
24. On or about May 18, 1996, Ms. Fontanella also advised Ms. Ciraolo that Ms. Fontanella would move out of their apartment building, 220 West 13th Street.
25. On June 21, 1996, Ms. Ciraolo agreed to withdraw her Petition in return for Ms. Fontanella’s verbal agreement that Ms. Fontanella would move out of their apartment building, 220 West 13thStreet, by the end of March 1997. Ms. Fontanella stated her agreement to move in the presence of Judge Zuckerman’s assistant. Ms. ciraolo also prepared a document memorializing this agreement.
¯ ’ 26. Detective Suarez asked for and was provided with a copy of the agreement between Ms. Ciraolo and Ms. Fontanella. On information and belief, he filed the document at the 6’h Precinct.
5

27. In January 1997, Ms. Ciraolo asked Ms. Fontanella whether.she would comply with her agreement to move out of their building. Ms. Fontanella became very agitated and told Ms. Ciraolo that "You are crazy." Ms. Ciraolo also placed a copy of the document memorializing the agreement in an envelope and slipped it under Ms. Fontanella’s apartment door.
28. Thereat~er, during the week of January 10, 1997, Ms. Ciraolo called the 6’h Precinct to advise that she had court papers to be served on Ms. Fontanella. The papers were for mediation at a hearing to be conducted on January 27, 1997.
29. Subsequently, on or about Friday, January 17, 1997~ Ms. Ciraolo received a message on her residential answering machine from defendant Detective Christin Morgillo asking Ms. Ciraolo to -~.call her.
30. Ms. Ciraolo returned the call the same day. Detective Morgilio stated that "There- ai~ ......... . some things I need to speak to you about. I think you need to come down [to the 6th Precinct]." She further indicated that the matter involved Ms. Fontanella and asked if Ms. Ciraolo had put something under her cousin’s door. Ms. Ciraolo responded that the matter was known to the Precinct and known to Family Court, and that it would not be convenient for her tO come to the precinct before the following Monday, Tuesday, or Wednesday, January 20, 21 or 22"~. ’Detective Morgillo said that she would get back in touch with Ms. Ciraolo.
31. On Tuesday, January 21, 1997, in the late at’ternoon, defendant Morgillo and another police officer appeared at Ms. Ciraolo’s apartment door. Defendant Morgilio told Ms. Ciraolo to accompany them to the 6~’ Precinct. When Ms. Ciraolo refused to go, defendant Morgillo stated that "If you don’t come, I am going to come back with a warrant. I am going to have a police car outside. I am going to have your neighbors see you taken out of the building." Defendant Morgillo tried to
6

place her foot in plaintiff’s door and appeared to be trying to enter, while plaintiff.pressed the door shut. Defendant Morgillo further stated that "I am going to put you in j~il with prostitutes and drug addicts. I am going to ruin your career. I am going to be back and ha~deuffyou and take you out of the building in front of your neighbors. I will have a police car outside waiting for you." Ms. Morgillo and the other officer then left.
32. Ms. Ciraolo, who was shaken by this incident, telephoned a friend whom she was to meet for dinner, Katherine Behrens. Ms. Behrens came to her apartment ~ at about 6:00 p.m.. At Ms. Ciraolo’s suggestion, they drove to the 6th Precinct and arrived there a~t about 6:20 p.m.
33. Ms. Ciraolo told a police officer at the precinct that Detective Morgillo had threatened .... to get an arrest warrant against her, and asked to see Detective Morgillo. Detective Morgillo came
downstairs and asked if Ms. Behrens was Ms. Ciraolo’s attorney. When she responded negatively, Detective Morgillo stated that "’She doesn’t need any mouthpiece. She ain’t going nowhere tonight."
34. At about 6:45 p.m. Ms. Ciraolo accompanied Detective Morgillo upstairs. Detective Morgillo directed here to empty her pockets and to take off.her coat. After Ms. Ciraolo complied, Detective Morgillo frisked her, and said that she was under arrest. Ms.:.Ciraolo asked what she had been arrested for. However, detective Morgillo did not respond. Rather, she asked Ms. Ciraolo for personal information including her name, address, and social security number. Ms. Ciraolo provided this information. Then Detective Morgil[o asked for her height and weight. Ms. Ciraolo refused to answer. Detective Morgillo became very hostile and grabbed Ms. Ciraolo roughly by her fight arm, and pulled her from her seat. She said that "You want to be difficult. I’ll make it difficult." Detective Morgillo locked Ms. Ciraolo in a holding cell in the precinct. Ms. Ciraolo remained locked in the cell for three hours, from about 7:00 p.m. to about 10:00 p.m.
7

35. After 10 p.m., Ms. Ciraolo was taken from the cell and photographed. Detective Morgillo handcuffed Ms. Ciraolo and brought her downstairs, where the h’andcuffs were removed and she was fingerprinted. Then Detective Morgillo handcuffed Ms. Ciraol0 again.
36. Then, with handcuffs on her, she was placed in a van and brought to 100 Centre Street. There she was placed on a line with other women in handcuffs. The handcuffs were removed, and she was taken to see a doctor, who questioned her about her medical background.
37. Then Ms. Ciraolo was taken to a cell in which two female employees of the Police Department, Jane Does 1 and 2, asked her if she was carrying and drugs or weapons. When Ms. Ciraolo responded in the negative, they" threatened that "If we find anything you are gonna be in trouble."
38. Jane Does 1 and 2 ordered Ms. Ciraolo to strip offall of her clothes, which she did under duress. They inspected her clothing.
39. Jane Does 1 and 2 then ordered Ms. Ciraolo, who was naked, to squat and cough, which she did. They thereby subjected her to a body cavity search.
40. Ms. Ciraolo was permitted to put her clothing back on. She was taken to another cell with a group of women with whom she remained for the rest of the nigh,t, and until she was released at about 3:30 p.m. on January 22, 1997.
41: At no time between her arrest, and her release the next day, did any of the defendants inform Ms. Ciraolo of her Miranda rights or of what she had been arrested for.
42. Ms. Ciraolo learned from her attorney Richard Rosencranz that her cousin, defendant F0ntanella had filed a complaint against her for harassment, and that was the basis for her arrest.
43. The Court ordered Ms. Ciraolo to return and appear in Criminal Court in thirty days.

44. At the end of the thirty days, in February 1997, Ms. Ciraolo and her counsel appeared in Criminal Court. The Assistant District Attorney requested another thirty day adjournment because he allegedly had not finished investigating the matter. The Court granted the adjournment.
45. On two separate occasions between January 21, 1997, a, nd March 19, 1997, Police Officers came to Ms. Ciraolo’s apartment, and alleged that they had received anonymous complaints about noise coming from her apartment. On both occasions the Police Officers leR after having spoken to Ms. Ciraolo, who indicated that she was alone and that there had been no such noise. In fact, there had been no disturbance or noise which warranted the Police Officers coming to her apartment. Upon information and belief, defendant Julie Fontanella made false complaints to the ¯ --Police Department that caused the Police Officers to go to Ms. Ciraolo’s apartment.
46. On March 19, 1997, Ms. Ciraolo and her counsel made their third appearance in Criminal Court. The Court dismissed the complaint against Ms. Ciraolo.
FIRST CLAIM FOR RELIEF (Defendant Morgillo and Municipal Defendants and Defendant Fontanella --False Arrest)
47. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 46, as if fully set forth herein.
48. On January 21, 1997, at the instigation of Julie Fontanella, Detective Christin Morgillo, arrested Ms. Ciraolo and placed her in handcuffs.
49. Defendants Fontanella and Morgillo did not have probable cause to believe that Ms. Ciraolo committed a crime. Ms. Ciraolo did not engage in any conduct that warranted her arrest or detention¯
9

50. As a result of the conduct of defendants, Ms. Ciraolo was detained, and at all times

knew she was detained. Moreover, Ms. Ciraolo did not consent to her detention.

51. Because defendants arrested Ms. Ciraolo without probable cause, their arrest of Ms.

Ciraolo was unreasonable within the meaning of the Fourth and Fourteenth Amendments to the

United States Constitution.

.~

52. As a result of her arrest, Ms. Ciraolo suffered, and conti0ues to suffer, psychological

harm and loss of earnings.

SECOND CLAIM FOR RELIEF

(Defendant Morgil!o--Excessive Force)

Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 52 as

if fully set forth herein.

~

54. On January 21, 1997, defendant Morgillo arrested Ms. Ciraolo and placed her in

handcuffs. In effectuating her arrest, defendant Morgillo used more force than Was necessary to place

the handcuffs on Ms. Ciraolo, and bruised her arm. 55. As Ms. Ciraolo’s behavior provided no justification for his conduct, the conduct of

defendant Morgillo was unreasonable within the meaning of the Fourth and Fourteenth Amendments

to the United States Constitution. 56. As a result of defendant Morgillo’s conduct, Ms. Ciraol’o suffered physical injury to

her arm, as well as psychological injury.

10

THIRD CLAIM FOR RELIEF (Defendant Jane Does 1 and 2--Unlawful Search and Seizure)

57. Plaintiffrepeats and realleges the allegations Contained in paragraphs 1 through 56 as

if fully set forth herein.

58. On January 21, 1997 defendants Jane Roes 1 and 2 conducted a body cavity search

of Ms. Ciraolo. In conducting the strip search of Ms. Ciraolo defendants knew, or should have

known, that said search was unlawful.

59. Defendants Jane Roes knew, or should have known, that no circumstance existed to conduct a body cavity search of Ms. Ciraolo. Ms. Ciraolo was arrested solely for harassment. She

did not engage in any threatening behavior. She posed no risk to herself, any member of the NYPD,

or any other person in police custody. ..................

60. Prior to conducting the strip search and body cavity search of Ms. Ciraolo, defendants

did not conduct any other less intrusive search in order to determine whether Ms. Ciraolo was armed

or in the possession of contraband.

61. As no reason existed to conduct the thoroughly intrusive invasion of Ms. Ciraolo’s person, the conduct of defendants was unreasonable within the meaning o~ the Fourth and Fourteenth

Amendments to the United States Constitution.

.

FOURTH CLAIM FOR RELIEF (Municipal Defendants--Unlawful Search and Seizure)
62. Plaintiffrepeats and reaileges the allegations contained in paragraphs 1 through 61 as
if fully set forth herein.

11

63. Defendant NYPD has adopted policies concerning searches to be performed of

persons taken into police custody.

.

64. One such policy authorizes strip searches and body cavity searchs of persons taken

into police custody as a result of an arrest.

65. In causing the strip search and body cavity search of Ms. Ciraolo, defendants acted

pursuant to established policy of the Municipal Defendants. ,.. 66. The established policy of the Municipal Defendants caused the violation of Ms.

Ciraolo’s constitutional rights protected by the Fourth and Fourteenth Amendments to the United

States Constitution.

--

67. As a result of the strip search and body cavity search defendant Morgillo caused to

be performed pursuant to the established policy of the Municipal Defendants, Ms. Cira010 suffefed~ ..........

and continues to suffer, psychological harm and loss of earnings.
FIFTH CLAIM FOR RELIEF (Defendants Morgillo and Municipal Defendants--Battery)

68. Plaintiffrepeats and realleges the allegations contained in paragraphs 1 through 67 as

if fully set forth herein.

69. On January 21, 1997, defendant Morgillo arrested Ms. Ciraolo and placed her in

handcuffs. In effectuating her arrest, defendant Morgillo used more force than was necessary to place the handcuffs on Ms. Ciraolo and thereby injured her arm.

70. While placing Ms. Ciraolo under arrest, defendant Mo.rgiilo was acting within the

sc/ope of her employment.

"

t

71. Ms. Ciraolo did not consent or otherwise authorize defendant Morgillo in handcuffing

her in the manner in which he did.

72. As a result of defendant Morgillo’s conduct, Ms. Ciraolo suffered physical injury to

her arm, as well as psychological harm.

73. As the employer of defendant Morgillo, the Municipal Defendants are responsible for the injuries Ms. Ciraolo has suffered, and continues to suffer, as a result of her conduct pursuant to

the doctrine of respondeat superior.

SIXTH CLAIM FOR RELIEF

(Defendant Fontanella- Malicious Prosecution) 74. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 73 as

if fully set forth herein.

75. No probable cause existed for defendant Fontanella’s commencement of a criminal

proceeding against plaintiff.

76. The proceeding terminated in plaintiff’s favor.

77. Upon information and belief, defendant Fontanella acted with actual malice towards

Ms. Ciraolo.

SEVENTH CLAIM FOR RELIEF

(Defendant Fontanella- Intentional Infliction of Emotional Distress) 78. Plaintiff repeats and re, alleges the allegations contained in paragraphs 1 through 77 as if fully setforth herein.

79. Defendant Fontanella intentionally subjected plaintiff to a campaign of harassment

including on March 27, 1996, threatening Ms. Fontanella, in January 1997 causing Ms. Fontanella’s

/

:

false arrest, and, upon information and belief, making false complaints tb the Police Department on

two occasions which caused Police Officers to go to Ms. Ciraolo’s apartment.

13

80. The foregoing has caused plaintiff to suffer emotional distress and loss of income.
WHEREFORE, Ms. Ciraolo prays for the following relief.’
(a) compensatory damages in an amount to be determined at trial; (b) punitive damages in an amount to be determined at trial; (c) reasonable attorneys’ fees; (d) costs and expenses; (e) interest; (0 special damages in an amount to be determined at trial; and (g) such other and further relief as is just and proper.
Dated: October 16, 1997 New York, New York
By: Stephen H. Weiner (SHW 7944) Law Office of Stephen H. Weiner Attorney for Plaintiff 20 Vesey Street, Suite 400 New York, New York 10007 (212) 566-4669 .

 
 Ciraolo v. City of New York, Not Reported in F.Supp.2d (2000)

2000 WL 1521180 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Debra CIRAOLO, Plaintiff, v.
THE CITY OF NEW YORK, Police Department of the City of New York, Detective Christin Morgillo,
Shield No. 2233, Jane Does 1-2, Shield Nos. Unknown, and Julie Fontanella Defendants.
No. 97 CIV. 8208(RPP). | Oct. 13, 2000.
Attorneys and Law Firms
Stephen H. Weiner, New York, Counsel for Plaintiff.
Michael D. Hess, Corporation Counsel for the City of New York, New York, By Lisa A. Weiss, Counsel for Defendants.
Opinion
OPINION AND ORDER
PATTERSON, D.J.
*1 Subsequent to trial, Plaintiff moves for attorney’s fees and costs pursuant to 42 U.S.C. § 1988. Defendants cross-move for costs incurred subsequent to their offer of pre-trial judgment under Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 68. For the reasons articulated herein, both motions are granted in the amounts specified below.
BACKGROUND
Plaintiff Deborah Ciraolo had a longstanding dispute with her neighbor and cousin, Julie Fontanella. In January 1997, following a complaint by Fontanella, Detective Morgillo of the New York City Police Department (“NYPD”) arrested Plaintiff for aggravated harassment in the second degree, a misdemeanor. Plaintiff was taken to Central Booking, where she was subjected to a strip and cavity search by two female Corrections Department employees. Although the charges against her were later dismissed, Plaintiff was traumatized by the experience and subsequently diagnosed with post-traumatic stress disorder.
Plaintiff brought suit under 42 U.S.C. § 1983 against New

York City, the NYPD, and the individual officers involved in her case, claiming that she had been falsely arrested, that the police had employed excessive force, and that the strip search violated her Fourth Amendment right against unreasonable search and seizure. Plaintiff also alleged a state law claim of battery.
On May 3, 1999 a four-day jury trial commenced on Plaintiff’s claims.1 The Court granted a directed verdict for Plaintiff under Fed.R.Civ.P. 50 with respect to the strip search. The jury rendered a verdict in favor of Defendants on the claims of unlawful arrest, excessive force and battery. The jury awarded Plaintiff $19,645 in compensatory damages for violating Plaintiff’s right against unreasonable search and seizure, as well as punitive damages in the amount of $5,000,000. On appeal, the Second Circuit reversed the award of punitive damages, citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), which held that, ordinarily, municipalities are immune from punitive damages under 42 U.S.C. § 1983.
Prior to trial, Defendants made an offer of judgment under Rule 68 in the amount of $25,001 plus reasonable attorney’s fees accrued up to July 17, 1998, the date of the offer. Plaintiff did not accept the offer, which was ultimately $5,356 more than the judgment awarded in compensatory damages.
DISCUSSION
(a) Application of Federal Rule of Civil Procedure 68 Both Plaintiff’s and Defendants’ motions require examination of the application of Fed.R.Civ.P. 68. The United States Supreme Court has explained that “[t]he purpose of Rule 68 is to encourage the settlement of litigation.” Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981). Rule 68 provides, in part:
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property to the effect specified in the offer, with costs then accrued.... If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the
1

Ciraolo v. City of New York, Not Reported in F.Supp.2d (2000)

offer.
*2 Fed.R.Civ.P. 68. Offers under Rule 68 that are not accepted within 10 days are deemed withdrawn. Id.
In all litigation, the adverse consequences of potential defeat provide both parties with an incentive to settle in advance of trial. Delta Air Lines, 450 U.S. at 352. Rule 68 provides an additional inducement to settle in those cases in which there is a strong probability that the plaintiff will obtain a judgment but the amount of recovery is uncertain. Id. If a plaintiff rejects a Rule 68 settlement offer, the plaintiff will lose some of the benefits of victory if the final recovery is less than the pre-trial offer. Id. Thus, Rule 68 requires plaintiffs to “think very hard” about whether continued litigation is worthwhile. Marek v. Chesny, 473 U.S. 1, 11, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985).
Under Rule 68 a defendant’s settlement offer must be sufficient to justify serious consideration by the plaintiff and made in good faith. See Delta Airlines, 450 U.S. at 349. If these conditions are met, and if the plaintiff’s final recovery is less than the pre-trial offer, the plaintiff must cover the defendant’s costs from the date of the offer. Fed.R.Civ.P. 68. See Jolly v. Coughlin, 1999 U.S. Dist. LEXIS 349 at *30.
The word “costs” under Rule 68 refers to all costs properly awardable under the relevant substantive statute or other authority. Marek v. Chesny, 473 U.S. at 9. Prevailing plaintiffs may recover attorney’s fees as part of their costs in cases brought under 42 U.S.C. § 1983. Id. In Marek, the Supreme Court held that a Rule 68 pre-trial offer of judgment precludes a plaintiff’s recovery of attorney’s fees as costs in a § 1983 case where the fees were incurred subsequent to the defendant’s offer. Id. The Supreme Court recognized that the results to plaintiffs who reject Rule 68 offers could be particularly harsh in suits brought under 42 U.S.C. § 1983, where prevailing plaintiffs could otherwise recover their attorneys’ fees as part of their costs. Marek, 473 U.S. at 11.
Here, Defendants offered Plaintiff a pre-trial Rule 68 offer of judgment in the amount of $25,001, which Plaintiff rejected. Plaintiff ultimately recovered a judgment of $19,645, an amount less than the pre-trial offer of judgment. No allegations have been made that Defendants’ offer was not made in good faith, and the $25,001 amount arguably warranted serious consideration by Plaintiff. Consequently, under Rule 68 Plaintiff cannot recover costs or attorney’s fees incurred subsequent to Defendants’ July 17, 1998, pre-trial offer of judgment. Defendants’ motion for costs incurred subsequent to the July 17, 1998, pre-trial offer of judgment is granted, as hereinafter adjusted.

(b) Attorney’s Fees Under 42 U.S.C. § 1988 Plaintiff seeks recovery of attorney’s fees pursuant to 42 U.S.C. § 1988. A plaintiff must be a “prevailing party” to recover an attorney’s fee under 42 U.S.C. § 1988, which provides, in part:
*3 [I]n any action or proceeding to enforce a provision of section ... 1983 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs....
42 U.S.C. § 1988. Generally, plaintiffs are considered “prevailing parties” for attorney’s fees purposes if they “succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir.1978)). Here, Plaintiff prevailed on the claim of unreasonable search and seizure under the Fourth Amendment, which was a significant issue in this § 1983 litigation. Accordingly, Plaintiff’s motion for costs and attorney’s fees is granted as to those costs and fees incurred prior to the July 17, 1998, Rule 68 pre-trial offer of judgment, as hereinafter adjusted.
(c) Calculation of Attorney’s Fees and Costs
1. Plaintiff’s Attorney’s Fees In determining the amount of “reasonable attorney’s fees,” the court must first establish a “lodestar” figure by multiplying the number of hours reasonably expended by the party’s attorneys by a reasonable hourly rate. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 172 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). An attorney must show that “requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).
For purposes of determining Plaintiff’s lodestar figure, only those hours accrued prior to the July 17, 1998, pre-trial offer of judgment will be counted because of the application of Rule 68. Based on the figures submitted to the Court, Plaintiff’s attorney, Mr. Stephen Weiner, reasonably expended 58 hours prior to July 17, 1998. Mr. Weiner claims a $225 per hour rate, which is consistent with the rates charged by New York City attorneys with his level of professional experience. Multiplying Mr.
2

Ciraolo v. City of New York, Not Reported in F.Supp.2d (2000)

Weiner’s hours expended by his hourly rate results in a lodestar figure of $13,050 in attorney’s fees.
Plaintiff also submits timekeeping records reflecting 7.5 hours of consultation work done prior to July 17, 1998 by Mr. Scott Korenbaum. Mr. Korenbaum also charges a $225 per hour rate, which is consistent with the rates charged by New York attorneys with his level of experience. Multiplying Mr. Korenbaum’s hours by his hourly rate of $225 yields a lodestar figure of $1,687.50 in attorney’s fees. Accordingly, Plaintiff’s lodestar figure is $13,050 plus $1,687.50, totaling $14,737.50.
Defendants argue that these hours should be reduced due to the lack of complexity of the case and the vagueness of Plaintiff’s timekeeping records. See Pino v. Loscasio, 101 F.3d 235, 239 (2d. Cir.1996) (stating that “[t]he vast majority of civil rights litigation does not result in ground-breaking conclusions of law....”). However, the case at hand was not so straightforward as to warrant a 30% reduction in fees. Moreover, although the records submitted by Plaintiff are far from comprehensive, Plaintiff’s award will not be reduced for vagueness. Plaintiff’s counsel are reminded, however, to maintain accurate, detailed and contemporaneous billing records showing the nature of services rendered. See New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-1148 (2d. Cir.1983).
2. Plaintiff’s Costs *4 Plaintiff seeks $7,484.59 to cover her total litigation costs. However, the Local Civil Rules of this Court bar recovery for some of Plaintiff’s costs. Under Local Civil Rule 54.1(c)(5), the costs of convenience photocopies are not recoverable. S.D.N.Y. Civ. R. 54.1(c)(5). Accordingly, the amount of Plaintiff’s total disbursements is reduced by the claim for photocopying costs, $43.90. In addition, Local Civil Rule 54.1(c)(3) only permits recovery for expert witnesses with prior approval by the court. S.D.N.Y. Civ. R. 54.1(c)(3). Plaintiff did not show that she sought prior approval from the Court for expert witness Timothy White, Ph.D. For this reason, Plaintiff cannot recover the $2,700 expert witness fee for Mr. White.
Computerized research is considered to be part of attorney’s fees and not assessed separately. See United States of America ex rel. Evergreen Pipeline Construction Co., Inc. v. Merritt-Meridian Construction Corp., 95 F.3d 153, 173 (2d. Cir.1996). Thus, the amount claimed for computerized research, $223.35, is excluded from Plaintiff’s recoverable costs.
As noted above, Plaintiff’s recovery of costs is limited to those litigation expenses incurred prior to the July 17, 1998, pre-trial offer of judgment. Thus, the following

costs incurred after the Rule 68 offer of judgment was made are excluded: $50 for service of a subpoena on Officer Alice Figueroa; $52.39 in postage; and $36 for the transportation of trial exhibits.
After subtracting costs for the expert witness, photocopies, computerized research, and those costs incurred after the July 17, 1998, pre-trial offer of judgment, Plaintiff is granted $4,378.95 in total costs.
3. Defendants’ Costs Defendants seek costs incurred subsequent to their Rule 68 offer of judgment of July 17, 1998. Defendants request $12,654.89 to cover the cost of court transcripts, deposition transcripts, and the services of a private investigator. Recoverable costs should only include those that are “incidental and necessary” to the representation of a client. Amato v. City of Saratoga Springs, 991 F.Supp. 62, 68 (N.D.N.Y.1998) (citing Northcross v. Board of Education, 611 F.2d 624, 639 (6th Cir.1979)). Since Defendants have not shown that the services of the private investigator were necessary to refute Plaintiff’s claim, the cost of the private investigator, $1,600.35, is not recoverable.
Defendants seek $3,016.14 for the deposition transcripts of Julie Fontanella, who settled in advance and never testified at trial. Local Rule 54.1(c)(2) only allows recovery for the cost of deposition transcripts used or received into evidence at trial. S.D.N.Y. Civ. R. 54.1(c)(2). Here, Defendants have not shown that this transcript was used or received into evidence at trial. Consequently, the $3,016.14 requested for the Fontanella transcripts is not recoverable.
After subtracting the costs of the private investigator and the Fontanella transcripts, Defendants are entitled to recover $8,038.40 as necessary and incidental costs incurred after their July 17, 1998, pre-trial offer of judgment.
CONCLUSION
*5 Plaintiff’s motion for attorney’s fees and costs prior to Defendants’ July 17, 1998, Rule 68 pre-trial offer of judgment is granted in the amount of $19,116.45, reflecting $4,378.95 in costs and $14,737.50 in attorney’s fees. Defendants’ motion for costs subsequent to the July 17, 1998, pre-trial offer of judgment is granted in the amount of $8,038.40.
IT IS SO ORDERED.
3

Ciraolo v. City of New York, Not Reported in F.Supp.2d (2000)

	  

Footnotes

1

Plaintiff settled her claims against Defendant Fontanella during a pre-trial conference held April 26, 1999.

	  

4

 
 SDNY CM/ECF Version 3.0L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?902344693198291-L_3...

CLOSED, MEDT5
U.S. District Court United States District Court for the Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:97-cv-08208-RPP

Ciraolo v. The City of New York, et al Assigned to: Judge Robert P. Patterson Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff Debra Ciraolo
V. Defendant The City of New York TERMINATED: 05/07/1999
Defendant Police Department of the City of New York TERMINATED: 05/07/1999
Defendant Christin Morgillo Detective, Shield No. 2233 TERMINATED: 05/07/1999
Defendant

Date Filed: 11/05/1997 Date Terminated: 05/12/1999 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Stephen Howard Weiner Law Office of Stephen H. Weiner 575 Lexington Avenue, Suite 2840 New York, NY 10022 (212)-566-4669 Fax: (212)-888-3182 Email: stevehw@aol.com LEAD ATTORNEY
represented by Alessandra Francesca Zorgniotti Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 (212) 788-1276 TERMINATED: 05/07/1999 LEAD ATTORNEY
represented by Alessandra Francesca Zorgniotti (See above for address) TERMINATED: 05/07/1999 LEAD ATTORNEY
represented by Alessandra Francesca Zorgniotti (See above for address) TERMINATED: 05/07/1999 LEAD ATTORNEY

1 of 7

6/28/2007 12:21 PM

SDNY CM/ECF Version 3.0L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?902344693198291-L_3...

Jane Does 1-2 Shield Nos. Unknown
Defendant Julie Fontanella TERMINATED: 05/12/1999

represented by Julie Fontanella 220 West 13th Street New York, NY 10011 (212) 691-2632 PRO SE
Julie Fontanella Pro Se 220 West 13th Street Apt. 3-B New York, NY 10011 TERMINATED: 05/12/1999 LEAD ATTORNEY

Date Filed 11/05/1997 11/05/1997 11/06/1997 11/06/1997 11/06/1997 12/04/1997
12/17/1997 01/21/1998 01/23/1998

#

Docket Text

1 COMPLAINT filed; Summons issued and Notice pursuant to 28 U.S.C. 636(c); FILING FEE $150.00. RECEIPT # 300875. (em) (Entered: 11/06/1997)
Magistrate Judge Katz is so Designated. (em) (Entered: 11/06/1997)
2 RETURN OF SERVICE executed as to The City of New York by serving the Corporation Counsel by leaving the papers with Lilmaria Echevarria on 11/5/97. Answer due on 11/25/97 for The City of New York. (kw) (Entered: 11/13/1997)
2 RETURN OF SERVICE executed as to Christin Morgillo by P.O. Riffas and mail on 11/6/97. Answer due on 11/26/97 for Christin Morgillo. (kw) (Entered: 11/13/1997)
2 RETURN OF SERVICE executed as to Julie Fontanella by personal service on 11/6/97. Answer due on 11/26/97 for Julie Fontanella. (kw) (Entered: 11/13/1997)
3 Filed Memo-Endorsement on letter to Judge Patterson from William P. Farley dated 12/01/97, reset answer due for 1/16/98 for Julie Fontanella, for Jane Does 1-2, for Christin Morgillo, for Police Department, for The City of New York ; conference will be held 1/23/98 at 9 a.m. (signed by Judge Robert P. Patterson) (djc) (Entered: 12/05/1997)
4 ANSWER to Complaint by Debra Ciraolo (Appearing Pro Se). (jp) (Entered: 12/22/1997)
5 ANSWER to Complaint by The City of New York, Police Department, Christin Morgillo (Attorney Alessandra Francesca Zorgniotti). (jp) (Entered: 01/22/1998)
Before Judge Patterson; Pre-trial conference held; joinder of addl parties by 3/2, medical authorizations by 2/6, discovery 5/29, pretrial order 6/10/98, trial date

2 of 7

6/28/2007 12:21 PM

SDNY CM/ECF Version 3.0L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?902344693198291-L_3...

01/26/1998
01/29/1998 03/13/1998 06/11/1998 06/12/1998 06/26/1998 09/11/1998 11/20/1998 02/02/1999 02/18/1999 02/19/1999

6/15/98 at 9:30 AM (cd) (Entered: 01/28/1998)
6 SCHEDULING ORDER: medical authorizations are due by 2/6/98; all discovery is to be completed by 5/29/98; pretrial order is to be filed by 6/10/98; trial date scheduled for 6/15/98 at 9:30 a.m.; joinder of additional parties due by 3/2/98. ( signed by Judge Robert P. Patterson ); Copies mailed (sac) Modified on 01/27/1998 (Entered: 01/27/1998)
7 Order referring action to the Clerk to assign the above-entitled action to mediation. All issues are eligible ( signed by Judge Robert P. Patterson ) (cd) (Entered: 01/30/1998)
8 Notice of selection of mediator. (sc) (Entered: 03/13/1998)
pre-trial conference (contested issue) held and concluded before Judge Patterson on 6/11/98; conference 6/23/98 at 5 p.m., schedule set: 8/31/98 for discovery, 9/16/98 for pretrial order, trial date 9/22/98 at 9:30 a.m. (ls) (Entered: 06/15/1998)
9 SCHEDULING ORDER: all discovery is to be completed by 8/31/98; pre-trial order is to be filed by 9/16/98; settlement conference with parties & counsel on 6/23/98 at 5:00 p.m.; trial date scheduled for 9/22/98 at 9:30 a.m. ( signed by Judge Robert P. Patterson ); Copies mailed (sac) (Entered: 06/15/1998)
10 SCHEDULING ORDER: all discovery to be completed by 9/30/98; pretrial order to be submitted on or before 10/14/98; trial date set for 10/19/98 at 9:30 a.m. ( signed by Judge Robert P. Patterson ); Copies mailed (ae) (Entered: 06/26/1998)
11 Filed Memo-Endorsement on letter by Stephen H. Weiner to Judge Patterson dated 9/9/98, reset discovery due for 11/20/98 ; reset pretrial order due for 12/2/98 ; trial set for 12/7/98 at 9:00 a.m. ( signed by Judge Robert P. Patterson ) (ae) (Entered: 09/14/1998)
12 Filed Memo-Endorsement on letter by Stephen H. Weiner to Judge Patterson dated 11/19/98, reset pretrial order due for 2/26/99 ; reset trial for 3/15/99 at 9:00 a.m. ( signed by Judge P. Patterson ) (ae) (Entered: 11/23/1998)
13 Filed Memo-Endorsement on letter addressed to Judge Patterson from Clyde Jay Eisman dated 1/29/99, granting in part request for an extension. Pltff's counsel is to respond to the issue of the court's jurisdiction on or before 2/16/99 (signed by Judge Robert P. Patterson). (kg) (Entered: 02/03/1999)
14 Filed Memo-Endorsement on letter to Judge Patterson from Steven A. Friedman dated 02/16/99, reset pretrial order due for 4/12/99 ; Trial for May 3, 1999 (signed by Judge Robert P. Patterson ) (djc) (Entered: 02/18/1999)
15 Filed Memo-Endorsement on letter addressed to Judge Patterson from Stephen H. Weiner, dated 2/16/99; Ms. Fontanella respectfully requests that if Your Honor decides to agree to the schedule proposed by Asst. Corporation Counsel Steven Friedman in his letter of today's date, there will be ample time to complete any outstanding discovery before trial on 5/3/99. In view of the Court's approval of the Corp. Counsel's schedule, this application is deemed moot ( signed by Judge Robert P. Patterson ) (sac) (Entered: 02/22/1999)

3 of 7

6/28/2007 12:21 PM

SDNY CM/ECF Version 3.0L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?902344693198291-L_3...

03/15/1999
04/14/1999 04/22/1999 04/22/1999
04/22/1999 04/22/1999 04/22/1999 04/26/1999 04/30/1999
05/03/1999 05/03/1999 05/04/1999 05/04/1999 05/05/1999 05/05/1999 05/06/1999

16 Filed Memo-Endorsement on letter to Judge Patterson from Clyde Jay Eisman dated 3/8/99; Clyde Jay Eisman requests clarification of the Court's position w/ respect to how it intends to proceed on the jurisdictional question and that, in the meantime, proceedings be stayed. Application denied. This case will go to trial w/ the pendent claims. The issues of false arrest and malicious prosecution involve a resolution of factual issues common to the claims against both parties; ; ( signed by Judge Robert P. Patterson ) (ls) (Entered: 03/15/1999)
Pre-trial conference held before Judge Patterson (ls) (Entered: 04/16/1999)
17 Proposed Voir Dire Questions by The City of New York, Det Christin Morgillo (ri) Modified on 04/23/1999 (Entered: 04/22/1999)
18 NOTICE OF MOTION by Debra Ciraolo for an order granting the following motions in limine: to preclude testimony of the following witnesses for the City of New York defendants 1) Dr. Robert Berger and 2) "An individual, whose name will be supplied, who either conducted or supervised the strip search." In addition, plaintiff respectfully requests that this Court exclude City Exhibits L, Q, and S , no return date set (ri) (Entered: 04/22/1999)
19 Request to charge by Debra Ciraolo. (ri) (Entered: 04/22/1999)
20 Proposed Voir Dire Questions by Debra Ciraolo. (ri) (Entered: 04/22/1999)
21 Municipal defendants' first request for jury instructions (ri) (Entered: 04/22/1999)
Pre-trial conference held before Judge Patterson (cd) (Entered: 04/29/1999)
22 Memo endorsed on copy of motion; granting in part, denying in part [18-1] motion for an order granting the following motions in limine: to preclude testimony of the following witnesses for the City of New York defendants 1) Dr. Robert Berger and 2) "An individual, whose name will be supplied, who either conducted or supervised the strip search." In addition, plaintiff respectfully requests that this Court exclude City Exhibits L, Q, and S; pltff is to complete her examination by Dr. Berger. Dr. Berger is to complete his report and be deposed before trial; defts will provide pltff with the identity of such witness or witnesses and allow their deposition before trial; City Exhibits L, Q & S are not admissable as evidence. ( signed by Judge Robert P. Patterson ); Copies mailed. (jp) (Entered: 05/03/1999)
Jury trial begun before Judge Patterson. (jp) (Entered: 05/10/1999)
Jury trial begun & continued on 5/3/99 before Judge Patterson (ae) (Entered: 05/18/1999)
Jury trial held before Judge Patterson. (jp) (Entered: 05/10/1999)
Jury trial held & continued on 5/4/99 before Judge Patterson (ae) (Entered: 05/18/1999)
Jury trial held before Judge Patterson. (jp) (Entered: 05/10/1999)
Jury trial held & continued on 5/6/99 before Judge Patterson (ae) (Entered: 05/18/1999)
Jury trial concluded before Judge Patterson. (jp) (Entered: 05/10/1999)

4 of 7

6/28/2007 12:21 PM

SDNY CM/ECF Version 3.0L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?902344693198291-L_3...

05/06/1999 05/07/1999
05/10/1999
05/11/1999
05/12/1999
05/12/1999 05/12/1999 05/12/1999 05/12/1999 05/12/1999 05/12/1999 05/12/1999 05/12/1999 05/12/1999 05/12/1999 05/24/1999 05/24/1999

Jury trial held & concluded on 5/6/99 before Judge Patterson. Total trial days 4; Jury Verdict (see attached) (ae) (Entered: 05/18/1999)
23 JUDGMENT #99,1052, that plntf have judgment in the sum of $5,019,645.00 as against the deft, the City of NY (signed by James M. Parkison, Clerk of Court); Mailed copies and notice of to appeal. Entered on 5/10/99 (cd) Modified on 05/12/1999 (Entered: 05/10/1999)
24 NOTICE OF APPEAL by The City of New York, Police Department, Christin Morgillo, Jane Does 1-2, Julie Fontanella ; from [23-1] judgment order . Copies of notice of appeal mailed to Attorney(s) of Record: Stephen H. Weiner . $105.00 Appeal filing fee paid on May 10, 1999 on receipt # E 344851. (dt) (Entered: 05/11/1999)
Notice of appeal and certified copy of docket to USCA: [24-1] appeal by Julie Fontanella, Jane Does 1-2, Christin Morgillo, Police Department, The City of New York ; Copy of notice of appeal sent to District Judge. (dt) (Entered: 05/11/1999)
25 STIPULATION AND ORDER; this action is hereby dismissed with prejudice and without costs, expenses, or fees in excess of the consideration specified in this document as against deft Julie Fontanella ; deft hereby agrees to provide pltff with the consideration set forth herein, in full satisfaction of all claims, including for costs, expenses, benefits and atty fees. In consideration for the payment of this sum, pltff agrees to dismissal of all the claims against the deft and all claims, or right of action in the complaint in this action, including claims for costs, expenses and atty fees. The effective date of this agreement is 3/31/99. Deft hereby agrees to provide pltff with the sum of $2,500.00. ( signed by Judge Robert P. Patterson ). (sac) (Entered: 05/13/1999)
Case closed (sac) (Entered: 05/14/1999)
26 Court Exhibit #2 at 12:24 p.m. (ae) (Entered: 05/19/1999)
27 Court Exhibit #3 (ae) (Entered: 05/19/1999)
28 Court Exhibit #4 at 1:02 p.m. (ae) (Entered: 05/19/1999)
29 Court Exhibit #5 at 2:35 p.m. (ae) (Entered: 05/19/1999)
30 Court Exhibit #6 at 3:37 p.m. (ae) (Entered: 05/19/1999)
31 Court Exhibit #6 at 3:06 p.m. (ae) (Entered: 05/19/1999)
32 Court Exhibit #7 at 4:34 p.m. (ae) (Entered: 05/19/1999)
33 Court Exhibit #8 (ae) (Entered: 05/19/1999)
34 Court Exhibit #9 at 5:00 p.m. (ae) (Entered: 05/19/1999)
36 AFFIRMATION in support of Stephen H. Weiner of his motion for attorney's fees and costs purs to 42 U.S.C. section 1988. (djc) (Entered: 05/26/1999)
37 MEMORANDUM of LAW in support of Motion of Plaintiff for Attorney's Fees (djc) (Entered: 05/26/1999)

5 of 7

6/28/2007 12:21 PM

SDNY CM/ECF Version 3.0L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?902344693198291-L_3...

05/24/1999
05/25/1999 05/28/1999
07/12/1999 07/22/1999 08/04/1999 08/04/1999 11/17/1999 06/27/2000
07/19/2000
07/26/2000

38 NOTICE OF MOTION for attorney fees to Stephen H. Weiner, Esq., in the sum of $64,215.00 with an appropriate multiplier and an award of attorney's fees to Scott Korenbaum, Esq., in the sum of $6,030.00 and for costs in the amount of $7,484.59 , Return date 6/16/99 w. affirmation of service (djc) (Entered: 05/26/1999)
35 Jury Trial Court Exhibit #1. Docketed per instructions of Chambers. (emil) (Entered: 05/26/1999)
39 Filed Memo-Endorsement on letter to Judge Patterson from Steven A. Freidman dated 5/26/99, defendant writes in response to plaintiff's motion for attorneys fees and costs, currently returnable 6/16/99. Plaintiff's application should be stayed pending the decision by the Second Circuit; Application granted, defendant need not respond to plaintiff's applaication for attorney's fees until 10 days after the Court of Appeals decides defendant's appeal (signed by Judge Robert P. Patterson) (ri) Modified on 06/03/1999 (Entered: 06/01/1999)
40 Transcript of record of proceedings before Judge Patterson filed for dates of 5/3-6/99 (jp) (Entered: 07/13/1999)
41 Notice that the record on appeal has been certified and transmitted to the U.S. Court of Appeals: (as) (Entered: 07/22/1999)
42 Report of the Clerk of Court regarding court-ordered mediation: Paragraph 4 or 5 and unresolved issues should be treated as if they had not been sent to mediation. (Signed by George O'Malley, Counsel for the Clerk of Court) (sc) (Entered: 08/05/1999)
43 Report of Mediator to the Clerk that the court-ordered mediation was held but was unsuccessful in resolving any issue in the case. The unresolved issues should be treated as if they had not been sent to mediation. (sc) (Entered: 08/05/1999)
Indexed record on appeal files (99-7550) sent to the U.S.C.A. *(Files requested by Vincenza Singleton from the U.S.C.A.)*. (dt) (Entered: 11/17/1999)
44 Memo-Endorsement on letter addressed to Judge Patterson from Lisa A. Weiss, dated June 23, 2000; Defendant's Response to motion reset to 7/26/00 for [38-1] motion for attorney fees to Stephen H. Weiner, Esq., in the sum of $64,215.00 with an appropriate multiplier and an award of attorney's fees to Scott Korenbaum, Esq., in the sum of $6,030.00, reset to 7/26/00 for [38-2] motion for costs in the amount of $7,484.59 ; (signed by Judge Robert P. Patterson); Copies mailed. (djc) (Entered: 06/29/2000)
45 MANDATE OF USCA (certified copy) Re: Ordered, Adjudged and decreed that the judgment of said district is Reversed in accordance with the opinion of this Court [24-1] appeal by Julie Fontanella, Jane Does 1-2, Christin Morgillo, Police Department, The City of New York. 99-7550, Roseann B. Mackechnie, Clerk. (sl) (Entered: 07/26/2000)
46 NOTICE OF CROSS MOTION by The City of New York, Police Department, Christin Morgillo for an order prus to FRCP 68 granting costs sought by City defts ; Return date not indicated; attached are papers in support (cd) (Entered: 07/27/2000)

6 of 7

6/28/2007 12:21 PM

SDNY CM/ECF Version 3.0L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?902344693198291-L_3...

07/26/2000 08/15/2000
10/05/2000 10/13/2000

47 MEMORANDUM OF LAW by The City of New York, Police Department in opposition to [38-1] motion for attorney fees to Stephen H. Weiner, Esq., in the sum of $64,215.00 with an appropriate multiplier and an award of attorney's fees to Scott Korenbaum, Esq., in the sum of $6,030.00, [38-2] motion for costs in the amount of $7,484.59 . (jp) (Entered: 07/27/2000)
48 Memo-Endorsement on letter addressed to Judge Patterson from Stephen H. Weiner, dated 8/14/00; granting counsel for the pltffs request for leave to serve an opposition to the defts [46-1] cross motion for costs on or before 8/18/00 , and granting the request to serve reply papers, if any, in further support of pltffs [38-1&2] application for legal fees on or before 8/18/00 ; defts reply papers to the [46-1] cross motion, if any, are due 8/28/00 . ( signed by Judge Robert P. Patterson ); Copies mailed. (jp) (Entered: 08/15/2000)
Record on appeal files (99-7550) returned from U.S. Court of Appeals: [24-1] appeal by Julie Fontanella, Jane Does 1-2, Christin Morgillo, Police Department, The City of New York. (dt) (Entered: 10/05/2000)
49 OPINION AND ORDER #84678, granting [46-1] cross motion for an order prus to FRCP 68 granting costs sought by City defts in the amount of $8,038.40; granting [38-1] motion for attorney fees in the amount of $14,737.50, granting [38-2] motion for costs in the amount of $4,378.95, for a total of $19,116.45 ( signed by Judge Robert P. Patterson ); Copies mailed (cd) Modified on 10/16/2000 (Entered: 10/13/2000)

PACER Service Center

Transaction Receipt

06/28/2007 13:10:47

PACER Login:

hs0328

Client Code:

Description:

Docket Report

Search Criteria:

Billable Pages: 5

Cost:

eeoc 1:97-cv-08208-RPP 0.40

7 of 7

6/28/2007 12:21 PM

 
 216 F.3d 236 (2000)
Debra CIRAOLO, Plaintiff-Appellee, v.
CITY OF NEW YORK, Police Department of the City of New York, Christin Morgillo, Detective, Shield No. 2233, Jane Does 1-2, Shield Nos. Unknown, and Julie Fontanella,
Defendants-Appellants.
Docket No. 99-7550.
United States Court of Appeals, Second Circuit.
Argued November 24, 1999. Decided June 15, 2000.
237 *237 Stephen H. Weiner, New York, NY, for Plaintiff-Appellee.
Julian L. Kalkstein, Office of the Corporation Counsel of the City of New York, New York, N.Y. (Michael D. Hess, Corporation Counsel, and Larry A. Sonnenshein, on the brief), for Defendants-Appellants.
Before: LEVAL, CALABRESI, and KATZMANN, Circuit Judges.
Judges CALABRESI and KATZMANN file separate concurring opinions.
CALABRESI, Circuit Judge:
After a jury trial in the United States District Court for the Southern District of New York (Robert P. Patterson, Jr., J.), plaintiff-appellee Debra Ciraolo was awarded $19,645 in compensatory damages and $5,000,000 in punitive damages against defendant-appellant the City of New York (the "City"), in her suit under 42 U.S.C. § 1983 for, inter alia, an unlawful strip search of her person. The City now appeals the award of punitive damages, and, for the following reasons, we reverse.
I
In January 1997, following a complaint by her neighbor, with whom she was apparently having a legal dispute, Debra Ciraolo was arrested for aggravated harassment in the second degree, a misdemeanor. Ciraolo was taken to the police station and then to Central Booking, where she was subjected to a strip and body cavity search by two female Corrections Department employees. Ciraolo was ordered to strip naked and made to bend down and cough while she was visually inspected. After spending the night in jail, she was released on her own recognizance; the charges against her were subsequently dismissed. Ciraolo was traumatized by the entire experience, and particularly by the humiliation of the strip search. Diagnosed with post-traumatic stress disorder, she entered therapy and began taking antidepressants.
The search of Ciraolo was not an isolated incident. Rather, it was in accordance with an established City policy of strip-searching all arrestees, including misdemeanants, whether or not there was reasonable suspicion that the arrestee possessed contraband. In July 1996, the City's Correction Department had adopted "guidelines [for] the acceptance of all Police Cases for the Manhattan Court Division," providing that "[a]ll police prisoners received 238 shall be strip search[ed] by the officer assigned to the search post." In *238 October 1996, the Executive Officer of the Manhattan Detention Complex implemented the guidelines by sending a memo to all personnel ordering that, "[e]ffective immediately, all female police prisoners arriving at this facility . . . be strip searched." Accordingly, when Ciraolo was arrested in early 1997, she was strip-searched as a matter of course, despite the conceded lack of any reasonable suspicion for the intrusive and demeaning search.
Ciraolo brought suit under § 1983 against the City, the police department, and the individual police officers involved in her arrest and search, claiming that she had been falsely arrested, that the police had employed

excessive force during the arrest, and that her strip search violated the Fourth Amendment. She also alleged battery, in violation of state law.
The district court found that the City's policy of strip-searching all arrestees regardless of the existence of reasonable suspicion violated the Fourth Amendment, in contravention of the clearly established law of this Circuit that "the Fourth Amendment precludes prison officials from performing strip/body cavity searches of arrestees charged with misdemeanors or other minor offenses unless the officials have a reasonable suspicion that the arrestee is concealing weapons or other contraband." Weber v. Dell, 804 F.2d 796, 802 (2d Cir.1986). Because the parties had stipulated to the existence of the City's policy of strip-searching all arrestees, and because there was no evidence that Ciraolo was believed to be concealing contraband, the court instructed the jury that the City was liable for any injuries the jury found to have been proximately caused by the strip search.
After soliciting letter briefs from the parties on the issue of punitive damages, the district court concluded that, in this case, punitive damages were available against the City because the strip search was pursuant to an official City policy that was contrary to the settled law of the Circuit. Accordingly, over the City's objection, the court charged the jury that punitive damages could be awarded against the City if they found that the City had acted maliciously or wantonly. In doing so, the court told the jury to consider whether compensatory damages would be adequate to punish the City and to deter future unlawful conduct.
The jury found in favor of the defendants on Ciraolo's claims of unlawful arrest, excessive force, and battery. It concluded, however, that the City had acted in wanton disregard of Ciraolo's rights when she was strip-searched, and awarded her $5,000,000 in punitive damages, as well as $19,645 in compensatory damages.
II
On appeal, the City does not contest the district court's holding that the strip-search policy was clearly unconstitutional under this Circuit's decision in Weber. Nor does it challenge the award of compensatory damages to Ciraolo. Rather, it contests only the award of punitive damages, arguing that the award was foreclosed by the Supreme Court's decision in City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), which held that, ordinarily, municipalities are immune from punitive damages under § 1983. In her turn, Ciraolo argues that Newport, in a footnote, permitted municipalities to be charged punitive damages in cases where "the taxpayers are directly responsible for perpetrating an outrageous abuse of constitutional rights," id. at 267 n. 29, 101 S.Ct. 2748, and that her case falls within this exception. We are, of course, bound by Newport. And we believe that the only fair reading of that decision, and of the footnote on which Ciraolo relies, mandates a conclusion that punitive damages are not available to her.
In Newport, a musical concert promoter, Fact Concerts, Inc., brought suit against the City of Newport, Rhode 239 Island, under § 1983 for a violation of its First Amendment rights. Fact Concerts had entered *239 into a contract
with Newport to present a jazz festival. Shortly before the festival, Fact Concerts hired the group Blood, Sweat and Tears to replace an act that had dropped out. See id. at 250, 101 S.Ct. 2748. Under the impression that Blood, Sweat and Tears was a "rock" group and that it might attract "a rowdy and undesirable audience," id., Newport tried to prevent the group from performing; eventually, the City Council voted to cancel the contract, a decision reported in the local media, see id. at 250-52, 101 S.Ct. 2748. Although Fact Concerts obtained an injunction from a state court allowing the festival to proceed, ticket sales were off substantially due to the adverse publicity. See id. at 252, 101 S.Ct. 2748. At trial, Fact Concerts won $200,000 in punitive damages against Newport, as well as other damages against the individual officials. See id. at 253, 101 S.Ct. 2748.
The Supreme Court reversed the award of punitive damages. See id. at 271, 101 S.Ct. 2748. In doing so, the Court applied "a two-part approach" to interpreting § 1983. Id. at 259, 101 S.Ct. 2748. It considered, first, the extent of municipal immunity at common law and the legislative history relevant to § 1983, and, second, the policies behind punitive damages and their compatibility with the purpose of § 1983. See id. at 258-59, 101 S.Ct. 2748.
In its historical inquiry, the Court reviewed nineteenth-century tort cases, and concluded that by 1871, when § 1983 was enacted, "municipal immunity from punitive damages was well established at common law." Id. at 263,

101 S.Ct. 2748. Proceeding on the premise that Congress would have been fully aware of this common-law immunity and would have been explicit had it intended to abolish the immunity, the Court turned to the legislative history of § 1983 to see if any such intent could be divined. See id. at 263-64, 101 S.Ct. 2748. Because, in fact, there was almost no legislative history surrounding the passage of § 1983 itself, the majority looked to the debate that took place over the proposed Sherman amendment to the Civil Rights Act that included § 1983. The Sherman amendment would have made municipalities liable for compensatory damages for injuries caused by mob violence. See id. at 264, 101 S.Ct. 2748. Noting that, as one supporter said on the floor of the House, the amendment was not intended "as a punishment for the county," but as "mutual insurance" to "indemnify the injured party," the Court concluded that "a Congress having no intention of permitting punitive awards against municipalities in the explicit context of the Sherman amendment would [not] have meant to expose municipal bodies to such novel liability sub silentio" (and more broadly) under § 1983. Id. at 265, 101 S.Ct. 2748.
The Court then turned to the question whether the two major policy arguments for punitive damages 0907deterrence and retribution0907would be advanced by assessing punitive damages against cities. It concluded that punitive damages against cities were not justified by a policy of deterrence because (1) it was unclear that municipal officials would be deterred by the prospect of damages borne by the taxpayers; (2) voters would, nonetheless, be likely to vote wrongdoing officials out of office absent punitive damages, both because they had done wrong and because of the possibility of compensatory damages; (3) punitive damages assessed directly against the offending officials would be a more effective means of deterrence; and (4) punitive damages could "create a serious risk to the financial integrity" of cities. Id. at 270, 101 S.Ct. 2748; see id. at 268-70, 101 S.Ct. 2748.
Nor, the Court opined, was the goal of retribution furthered by punitive damages, since such damages would punish only the innocent taxpayers. "[P]unitive damages imposed on a municipality are in effect a windfall to a fully compensated plaintiff, and are likely accompanied by an increase in taxes or a reduction of public services 240 for the citizens footing the bill. Neither reason nor justice suggests that *240 such retribution should be visited upon the shoulders of blameless or unknowing taxpayers." Id. at 267, 101 S.Ct. 2748. Accordingly, the Court held that "a municipality is immune from punitive damages under 42 U.S.C. § 1983." Id. at 271, 101 S.Ct. 2748.
The Court did, however, indicate that in some rare cases, the goal of retribution might be furthered by punitive damages against a municipality. In a footnote, the majority mused, "It is perhaps possible to imagine an extreme situation where the taxpayers are directly responsible for perpetrating an outrageous abuse of constitutional rights. Nothing of that kind is presented by this case. Moreover, such an occurrence is sufficiently unlikely that we need not anticipate it here." Id. at 267 n. 29, 101 S.Ct. 2748.
Ciraolo relies on footnote 29 for her claim that punitive damages are warranted in her case. She reads the footnote as creating an "outrageous abuse" exception to the general municipal immunity established by Newport, and contends that the City's strip-search policy is sufficiently outrageous to fall within that exception. We believe that Ciraolo misapprehends footnote 29.
Footnote 29 must be read as part of the Court's discussion of the retributive function of punitive damages. As such, it elaborates on the Court's conclusion that it is unjust to punish the taxpayers for tortious conduct by municipal officials, because the taxpayers are not normally directly responsible for that conduct. The footnote suggests that, in the rare case where the taxpayers are directly responsible for an outrageous violation of a plaintiff's constitutional rights, it may well be just for the taxpayers to bear the burden of punitive damages. To the extent that footnote 29 creates an exception to Newport's general rule against punitive damages, therefore, it is not an exception for particularly outrageous abuses, as Ciraolo would have it, but rather an exception for outrageous abuses for which the taxpayers are directly responsible.
The footnote does not tell us when, in the Court's judgment, taxpayers could be held to be directly responsible for a municipal policy. Although it could be argued that, to the extent that they are also voters who play a part in choosing municipal officials, taxpayers are always responsible for municipal policies, such responsibility is clearly too indirect to give rise to liability for punitive damages under the logic of Newport. Footnote 29 seems, instead, to contemplate a much more immediate connection between the taxpayers' behavior and the unconstitutional municipal policy, perhaps0907for example as 0907 close a link as a referendum in which the taxpayers directly adopted the invalid policy.

We are, moreover, aware of no case in which a court of appeals has upheld an award of punitive damages against a municipality premised on footnote 29. Indeed, very few cases have even discussed the footnote, although the First and Fifth Circuits have offered considered analyses of it. See Webster v. City of Houston, 689 F.2d 1220 (5th Cir.1982), rev'd on other grounds on reh'g, 735 F.2d 838 (5th Cir. 1984) (en banc); Heritage Homes of Attleboro, Inc. v. Seekonk Water Dist., 670 F.2d 1 (1st Cir.1982). In Heritage Homes, the First Circuit appeared to acknowledge that the footnote might apply in a case where the taxpayers voted in favor of an unconstitutional policy, but nevertheless declined to allow punitive damages where residents of the Seekonk Water District had engaged in "blatantly raci[st] discussions" before voting to exclude from access to water a housing development owned by developers willing to sell houses to black families. Id. at 2. The court reasoned that only a tiny minority of Water District members had actually voted to exclude Heritage Homes, and that "[a]bsent widespread knowledgeable participation by taxpayers . . . to award punitive damages against the Water 241 District would not serve the purposes of punishment or deterence. . . . *241 The actions of a small claque of voters would burden several thousand non-participants, many of whom presumably were unaware of the entire controversy." Id.
In Webster, the Fifth Circuit addressed the potential applicability of footnote 29 in a § 1983 suit brought by the parents of Randy Webster, a seventeen-year-old boy shot and killed by Houston police after a car chase 0907while he was unarmed and attempting to surrender. The police had attempted to cover up the shooting by planting a gun in the boy's hand, and it came out at trial that the Houston police had an unwritten custom of carrying "throwdowns," guns or knives to be planted near suspects who had been shot in dubious circumstances. After trial, the jury awarded the Websters, inter alia, $200,000 in punitive damages to be assessed on the city. See Webster, 689 F.2d at 1223. Reversing this award of punitive damages, the court stated:
The plight of Randy Webster, however reprehensible, however tragic, does not rise to the level of outrageous conduct to which Justice Blackmun referred [in footnote 29]. . . . [Section 1983 was] enacted in a time of frightening violence, to ensure the most basic constitutional rights of citizens in southern states. If the members of Congress who drafted that Act did not intend to establish a rule of punitive damages, we believe that it would take a far more serious violation than that we confront to ground punitive damages against Houston.
Id. at 1229. The Webster majority, in contrast to the First Circuit, thus focused on the outrageousness of the particular conduct at issue, rather than the extent to which taxpayers could be held directly responsible for it.
In a powerfully written concurrence, Judge Goldberg disagreed with the majority's interpretation of footnote 29. In his view, "rather than creating an exception, this footnote precludes any exception." Id. at 1231 (Goldberg, J., concurring). He commented that "[i]t might be possible to read footnote 29 as allowing an exception where the electorate of a political unit votes affirmatively in favor of outrageous conduct," although "[e]ven in that situation there would be some difficulty in assessing damages where a minority of the electorate voted against the outrageous conduct." Id. at 1231 n. 1. Nevertheless, he took the thrust of the footnote to be essentially a bolstering of Justice Blackmun's argument that allowing punitive damages against a municipality would not further their traditional retributive purpose. See id. at 1231. Although he believed that the Supreme Court's holding in Newport swept too broadly, and was both unwarranted and unwise in a case like Randy Webster's, see id. at 1231-32, he therefore concurred in the judgment.
We are inclined, like the First Circuit, to the view that any exception envisioned in footnote 29 must be an exception for cases in which the taxpayers are directly responsible in 0907 their role as voters 0907for the adoption of an unconstitutional municipal policy, rather than an exception for especially outrageous abuses of constitutional rights. If, for example, a town adopted, by a unanimous vote, a referendum establishing an unconstitutional rule, we can see no reason in the policies discussed in Newport why punitive damages ought not to be awarded.[1] But such a case is not before us today. (And so nothing we here say about the applicability of footnote 29 to a referendum can be binding on any future court presented with the question.) Rather, we are here faced with the much more common situation in which an unconstitutional policy has been adopted by municipal officials without 242 any clear endorsement of the policy by the electorate. In such circumstances, while we emphatically deplore *242

the City's conduct in adopting a policy that this Circuit had earlier clearly held unconstitutional, the taxpayers themselves cannot be held to be responsible for the policy under the reasoning of Newport.
The district court, while not relying explicitly on footnote 29, concluded that Newport did not preclude the award of punitive damages to Ciraolo because the Newport cause of action stemmed from one improper action by Newport officials, while in Ciraolo's case the City had adopted a policy contrary to the clearly established law of this Circuit. We sympathize with the district court's desire to allow the jury to award punitive damages in this case. Like it, we are seriously troubled by the City's adoption of a policy we had previously held to be unconstitutional. Nevertheless, we conclude that the district court misread Newport, and that the distinction drawn by the court has little force in this context.
Municipal liability under § 1983 occurs, if at all, at the level of policy-making, and cannot be premised on a theory of respondeat superior. See Monell v. Department of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983."). As a result, the fact that Ciraolo's strip search occurred because of an established City policy in no way distinguishes her case from other § 1983 cases in which municipal liability is established, and cannot suffice to place this case within the seemingly narrow exception carved out by footnote 29.
Accordingly, and despite what might be the salutary effects of punitive damages in a case such as this, we are constrained by the Supreme Court's holding in Newport to reverse the award of punitive damages.[2]
* * * * * *
The award of punitive damages against the City is REVERSED and the case is REMANDED to the district court for entry of judgment in accordance with this opinion.
CALABRESI, Circuit Judge, concurring:
Although the result the court reaches today is compelled by Supreme Court precedent, I respectfully suggest that the policies behind punitive damages and the purpose of § 1983 would be better furthered by a different outcome. I write separately to explain why I believe this to be so. Cf. Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (Brennan, J., concurring in his own majority opinion).
I
The purpose of § 1983 is "not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well." Owen v. City of Independence, 445 U.S. 622, 651, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Indeed, the Court in Newport recognized that punitive damages serve the dual purpose of deterrence and retribution. See Newport, 453 U.S. at 266-67, 101 S.Ct. 2748. Nevertheless, and as discussed above, the Court concluded that "the deterrence 243 rationale of § 1983 does not justify making punitive damages available against municipalities," id. at 268, *243 101 S.Ct. 2748, because (1) it was unclear that municipal officials would be deterred by the prospect of damages borne by the taxpayers; (2) voters would still be likely to vote wrongdoing officials out of office absent punitive damages, both because they had done wrong and because of the possibility of compensatory damages; (3) punitive damages assessed directly against the offending officials would be a more effective means of deterrence; and (4) punitive damages could "create a serious risk to the financial integrity" of cities. Id. at 270, 101 S.Ct. 2748; see id. at 268-70, 101 S.Ct. 2748.
The Court's analysis, however, neglected at least one aspect of the deterrence function of punitive damages an 0907 aspect underscored by this case. Punitive damages can ensure that a wrongdoer bears all the costs of its actions, and is thus appropriately deterred from causing harm, in those categories of cases in which

compensatory damages alone result in systematic underassessment of costs, and hence in systematic underdeterrence.
It is easy to show why this is so. A rational actor[1] will undertake an activity when the benefits of doing so exceed the costs. In doing so, it will make some sort of formal or informal, spoken or unspoken, cost-benefit analysis, based on the information it possesses, to determine if a particular activity is worth its price. Such an analysis cannot be even roughly accurate unless approximately all the costs of the activity are borne by the actor. When the perceived benefits of an activity accrue to the actor, but some significant part of the costs is borne by others, the cost-benefit analysis will necessarily be distorted. In such a case, the actor will have an incentive to undertake activities whose social costs exceed their social benefits. In other words, the actor will not be adequately deterred from undesirable activities. And society will suffer.[2]
One goal of the tort system, therefore, is to ensure that actors bear the costs of their activities. See, e.g., Calabresi, supra note 4. And that is also a goal of § 1983, which, as the Supreme Court has noted, was designed to deter constitutional torts by making the tortfeasors liable in damages to their victims. See Newport, 453 U.S. at 258, 101 S.Ct. 2748; Owen, 445 U.S. at 651, 100 S.Ct. 1398.
In some circumstances, compensatory damages alone will be enough to promote an adequate cost-benefit analysis. In other cases, however, compensatory damages will not come close to equaling all the costs properly attributable to the activity. Costs may not be sufficiently reflected in compensatory damages for several reasons, most of which go to the fact that not all injured parties are in fact compensated by the responsible injurer. For example, a victim may not realize that she has been harmed by a particular actor's conduct, or may not be able to identify the person or entity who has injured her. See, e.g., Polinsky & Shavell, supra note 4, at 888. Where the injurer makes active efforts to conceal the harm, this problem is of course exacerbated. Moreover, even if a victim is aware of her injury and is able to identify its cause, she may not bring suit. A person will be unlikely to sue if the costs of doing so0907including the time, effort, and stress associated with bringing a lawsuit 0907outweigh the 244 compensation she can expect *244 to receive. A victim is especially unlikely to sue, therefore, in cases where the probable compensatory damages are relatively low. See id. As a result, a harm that affects many people, but each only to a limited degree, will generally be given inadequate weight if only compensatory damages are assessed.
In addition, some victims will not sue even if the damages they could expect to receive would exceed the costs of suing. Victims will differ greatly in their knowledge of and access to the legal process, and those who are relatively poor and unsophisticated, as a practical matter, are frequently unable to bring suit to redress their injuries even if those injuries are grave. A harm that disproportionately affects such victims, therefore, is also particularly likely not to be accurately reflected in compensatory damages.
For these and other like reasons, compensatory damages are, in wide categories of cases, an inaccurate measure of the true harm caused by an activity, and, as a result, making an injurer bear only such damages does not provide adequate deterrence against socially harmful acts. In such circumstances, additional damages, assessed in the cases that are brought, may be an appropriate way of making the injurer bear all the costs associated with its activities.
This idea is far from new. Many years ago, in an influential article that was in part responsible for his receipt of the Nobel Memorial Prize in economics, Professor Becker pointed out that charging a thief the cost of what he had stolen would not adequately deter theft unless the thief was caught every time. Since thieves will not always be caught, they must be penalized by more than the cost of the items stolen on the occasions on which they are caught. This "multiplier" is essential to render theft unprofitable and properly to deter it. See Becker, supra note 4. More recently, scholars have recognized that punitive damages can serve the same function in tort law. See, e.g., Thomas C. Galligan, Jr., Augmented Awards: The Efficient Evolution of Punitive Damages, 51 La. L.Rev. 3 (1990); Polinsky & Shavell, supra note 4.
Professors Polinsky and Shavell, for example, have argued that punitive damages should be assessed whenever a tortfeasor has a significant likelihood of escaping liability, and have even suggested a formula (simpler to state than to apply) for calculating such damages: total damages should equal the amount of loss in a particular case,

multiplied by the inverse of the probability that the injurer will be found liable.[3]See id. at 889. Thus, if the injurer causes harm of $10,000, but will be found liable only one-fifth of the time, total damages 0907according to Polinsky and Shavell0907should equal $50,000 ($10,000 in compensatory damages and $40,000 in punitive damages). See id. Use of such a multiplier, they argue, will cause damages to equal the total harm caused, forcing the injurer to take into account all the costs of its activity and thus decreasing the likelihood that socially harmful activities will persist.[4]See id.
245 *245 Such a conception of punitive damages, again, is not new, and it has been recognized by courts as well as scholars. Indeed, the Supreme Court, considering punitive damages in a quite different context from that in Newport, acknowledged that in determining such punitive damages, it is proper to consider the extent to which the tortfeasor might otherwise escape liability. See BMW of North America, Inc. v. Gore, 517 U.S. 559, 582, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (noting that "[a] higher ratio" of punitive to compensatory damages "may . . . be justified in cases in which the injury is hard to detect"); see also id. at 592-94, 116 S.Ct. 1589 (Breyer, J., concurring) (suggesting that "punitive damages awards that, as a whole, would take from a wrongdoer the total cost of the harm caused" might constrain potential arbitrariness and "counsel[ ] more deferential review" by appellate courts). In addition, the Seventh Circuit, in a § 1983 suit against an individual defendant, has explicitly endorsed the multiplier function of punitive damages. See Kemezy v. Peters, 79 F.3d 33, 35 (7th Cir.1996) (Posner, J.) (pointing out that "[w]hen a tortious act is concealable, a judgment equal to the harm done by the act will underdeter" because the tortfeasor "will not be confronted by the full social cost of his activity"). Finally, Judge Goldberg, in his concurrence in Webster, offered a powerful critique of Newport's treatment of punitive damages and suggested that deterrence would be furthered by the assessment of punitive damages against municipalities in § 1983 actions where the municipal policy at issue is one that tends toward concealment of wrongdoing. See Webster, 689 F.2d at 1235-38 (Goldberg, J., concurring).
Although widely accepted by economists and acknowledged by some courts, the multiplier function of punitive damages has nonetheless been applied haphazardly at best. One reason this is so is that the twin goals of deterrence and retribution are often conflated, rather than recognized as analytically distinct objectives. The term "punitive damages" itself contributes greatly to the confusion. For punitive damages, the term traditionally used for damages beyond what is needed to compensate the individual plaintiff, improperly emphasizes the retributive function of such extracompensatory damages at the expense of their multiplier-deterrent function. It also fails totally to explain the not unusual use of such damages in situations in which the injurer, though liable, was not intentionally or wantonly wrongful.[5] A more appropriate name for extracompensatory damages assessed in order to avoid underdeterrence might be "socially compensatory damages." For, while traditional compensatory damages are assessed to make the individual victim whole, socially compensatory damages are, in a sense, designed to make society whole by seeking to ensure that all of the costs of harmful acts are placed on the liable actor.[6]
246 *246 Indeed, it would not be inappropriate to disaggregate the retributive and deterrent functions of extracompensatory damages altogether and allow separate awards to further the two separate goals. In such a system, socially compensatory damages might be permitted in cases in which all the costs of a defendant's actions were not before the court, whether or not the defendant's conduct was particularly blameworthy.[7] But a separate award of punitive damages would be allowed only in cases where the defendant's conduct was sufficiently reprehensible to deserve punishment apart from whatever assessment was required to compensate the individual victim or society as a whole.[8]
The majority in Newport raised the objection that "punitive damages . . . are in effect a windfall to a fully compensated plaintiff." Newport, 453 U.S. at 267, 101 S.Ct. 2748. It is likely that a feeling that such "windfalls" are not warranted0907and are distributed arbitrarily among plaintiffs 0907lies, and properly so, behind much of the current distaste for punitive damages. Of course, socially compensatory damages will have an equivalent deterrent effect on the injurer no matter whom they are paid to. As one commentator put it, "[a]n efficient windfall is still efficient." Galligan, supra, at 58; see also Webster, 689 F.2d at 1237 n. 7 (Goldberg, J., concurring). Nevertheless, the existence of such potential windfalls may well induce undesirable behavior on the part of 247 victims and of their lawyers. And there is no good reason why socially compensatory damages should be *247

paid to the individual plaintiff, at least beyond a relatively small part sufficient to induce the victim to undertake the expense of pleading and proving them.
In fact, in order to achieve the goal of social compensation, as well as the goal of optimal deterrence, it would be preferable if such damages were paid into a fund that could then be applied to remedy some of the unredressed social harm stemming from the defendant's conduct. And some states have explicitly recognized this socially compensatory function by mandating that at least a portion of punitive damages awards should go not to the plaintiff, but to the state treasury or to a specified fund. See BMW, 517 U.S. at 616-18, 116 S.Ct. 1589 (Ginsburg, J., dissenting) (collecting state laws providing for allocation of punitive damages to state agencies). A similar mechanism could be employed in the case of socially compensatory damages assessed against municipalities. [9]

II

As Judge Posner suggested in Kemezy, socially compensatory damages are anything but foreign to the goals of § 1983. And the rationale for socially compensatory damages in the case of an individual defendant holds equally true where the defendant is a municipality. Indeed, the case before us shows especially vividly the possible utility of such socially compensatory damages. Here, the City of New York adopted a strip-search policy that it knew or clearly should have known was unconstitutional. Counsel for the City estimated at trial that about 65,000 people arrested for misdemeanors had been subjected to strip searches under the policy. Under ordinary circumstances, very few of those 65,000 victims would have been likely to sue, both because the compensatory damages they would have received would have been relatively low and because they were no doubt, in the main, relatively poor and unsophisticated.

As one scholar has noted:

[T]he conditions of constitutional tort litigation for harm caused by law enforcement officials are

ones in which the deterrent effect is likely to be on the low side. The potential plaintiffs, after all,

are individuals who are in contact with the criminal justice system, generally as suspects or

defendants. Many are unlikely to bring suit for harm suffered, whether because of ignorance of

their rights, poverty, fear of police reprisals, or the burdens of incarceration. Moreover, in many

cases the harm suffered by individuals from the constitutional violation itself may be small, widely

dispersed, and intangible, providing little incentive for potential plaintiffs to sue, especially given

248

the lack of sympathy *248 that this group of plaintiffs can expect from the trier of fact.

Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum. L.Rev. 247, 284 (1988) (footnotes omitted). In such circumstances 0907which are epitomized in the case before us0907socially compensatory damages may well be necessary if, consistent with the goals of § 1983, constitutional violations are to be deterred adequately.

Socially compensatory damages are, of course, not the only possible means of deterrence in such situations. Two other approaches come readily to mind. Neither, however, is likely to suffice to achieve the purposes of § 1983.

First, one might think that an injunction, and the possibility of contempt sanctions for flouting it, would deter municipalities from engaging in repeated constitutional violations. Standing doctrine, however, generally precludes a § 1983 plaintiff from obtaining injunctive relief unless she can demonstrate that she is likely to be subjected to the same conduct in the future, a showing that can be very difficult to make. See City of Los Angeles v. Lyons, 461 U.S. 95, 105-06, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (holding that a plaintiff injured on one occasion by a police chokehold has no standing to seek an injunction against such chokeholds).

Second, it is possible that where many people suffer a relatively small harm, they could bring a class action and obtain damages that would approximate the total harm caused by the constitutional violation. And, in fact, a class action has been brought against the City by the victims of the strip-search policy. See Benjamin Weiser, StripSearch Case Leaves City Facing a Bigger Liability, N.Y. Times, May 12, 1999, at A1. But class actions have their

own limitations. For one thing, there are many situations in which the likelihood of escaping liability stems not from the high number of victims of an unconstitutional wrong, but from the municipal defendant's attempts to conceal that wrong. See Webster, 689 F.2d at 1235-38 (Goldberg, J., concurring). It may be, therefore, that a municipal defendant has a significant chance of escaping liability and yet the number of potential plaintiffs is not great enough to satisfy the numerosity requirement of Rule 23. See Fed.R.Civ.P. 23(a)(1). Moreover, use of the class mechanism can result in compromising plaintiffs' autonomy and ignoring conflicts among class members. Finally, like individual plaintiffs, class-action plaintiffs face costs that might dissuade them from bringing suit, including the added cost of managing the class, and these may well offset the economies of scale achieved through a class action. All in all, there is little reason to think that class actions can, or should, be the sole or even the principal vehicle for dealing with underdeterrence.
Once it is recognized that remedying underdeterrence is an appropriate function of extracompensatory damages against a municipality, and that it is a goal that can be separated from punishment, Newport's objections to punitive damages under § 1983 lose much of their force. First, the kind of socially compensatory damages I have been discussing would not punish "blameless or unknowing taxpayers," Newport, 453 U.S. at 267, 101 S.Ct. 2748, for they would not be punishment at all. Second, if deterrence is viewed not as an incidental byproduct of punishment, but as deriving instead from the placement of the relevant costs of a city policy on the city in order to encourage a more rational decisionmaking process, Newport's arguments that extracompensatory damages would not be likely to deter cities also fall.
Thus, the Newport Court contended that it was unclear that municipal officials would be deterred by the prospect of damages borne by the taxpayers. See id. at 268-69, 101 S.Ct. 2748. But an analogous argument was long ago 249 refuted with respect to corporations and to not-for-profit *249 institutions.[10] It is no more valid for governmental ones. Assuming that a city is at least minimally rational in its decisionmaking, it will be better able to assess the relative social costs and benefits of a particular municipal policy if it knows that it will bear all, rather than only some, of the costs of that policy. Both a city's power to tax and its officials' ability to stay in office are limited by political considerations, and when taxpayers must pay more and get less in return they 0907like charitable donors or buyers of goods0907will make their displeasure known.
Second, the Court argued that voters would be likely to vote wrongdoing officials out of office even absent punitive damages, both because the officials had done wrong and because of the possibility of compensatory damages. See id. at 269, 101 S.Ct. 2748. But, again, damages that are equal to the harm caused by a particular municipal policy would presumably encourage voters to call their elected representatives to account more often than would damages that by definition represent only a small fraction of that harm.
Third, the Court contended that punitive damages assessed directly against the offending officials would be a more effective means of deterrence. See id. at 269-70, 101 S.Ct. 2748. But, in the case of a municipal policy for which no one official is primarily responsible, damages premised on individual guilt are unlikely to be efficacious. See Webster, 689 F.2d at 1236-37 (Goldberg, J., concurring) ("[A]t whom do we point the finger of guilt in the case of tragic collective apathy?"). Moreover, the incapacity of individual offending officials to pay significant damage awards inevitably limits such officials' responsiveness to the threat of suits.[11]
250 *250 Fourth, and finally, the Newport majority evinced concern that punitive damages could "create a serious risk to the financial integrity" of cities, in part because "the unlimited taxing power of a municipality may have a prejudicial impact on the jury, in effect encouraging it to impose a sizable award." Newport, 453 U.S. at 270, 101 S.Ct. 2748 . I am not insensitive to the possibility that a very large award of damages could affect a city's finances. And it is for that very reason0907contrary to the Newport Court's first argument0907that socially compensatory damages would be likely to prove an effective deterrent. See Webster, 689 F.2d at 1237 (Goldberg, J., concurring) ("It is necessary that the threatened damages cause some deprivation for the populace so that they will be nudged out of their blissful ignorance. . . ."). Nevertheless, I emphasize that, in assessing the kind of damages that I have been discussing (in contrast to traditional punitive damages), it would not be proper for a trier of fact to take the city's taxing power into account. The basis for socially compensatory damages is the multiplier effect, that is, the probability that the city would otherwise escape liability for damages it actually caused, and not the depth of its pockets. And this basis should be strictly enforced by the court in reviewing damage awards.

Because the Court in Newport focused on the difficulty with furthering the retributive goals of punitive damages in the case of a municipality, and envisioned deterrence as an ancillary consequence of retribution, it did not examine the possibility that socially compensatory, as opposed to traditional punitive, damages might comport both with Congress's original intent and with the policies behind § 1983. As a lower court bound by Newport, it is not for us to decide this question. Nevertheless, I respectfully suggest that the purpose of § 1983, to protect federal constitutional rights against infringement by state actors, is not served when as 0907 in the case before us0907the prospect of damages awarded pursuant to the statute manifestly fails to deter a municipality from adopting a policy that it clearly knows or should know violates the Fourth Amendment.
KATZMANN, Circuit Judge, concurring in part:
I concur in the result reversing the award of punitive damages. I decline, however, to express a view as to the meaning of footnote 29 in City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267 n. 29, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), beyond the context of the case at hand. As my colleagues observe, the Supreme Court itself provided little guidance as to what constitutes "an extreme situation where the taxpayers are directly responsible for perpetrating an outrageous abuse of constitutional rights." Id. I believe that there are too many complexities associated with this idea to permit speculation with regard to a referendum situation not before us.
As my colleagues recognize, to the extent that footnote 29 creates an exception, any case justifying punitive damages must satisfy a conjunctive, two-part test, both for direct responsibility and for outrageous abuse. Neither the fact that Ciraolo's strip search occurred pursuant to an established policy adopted by the City of New York, nor that some taxpayers may have voted for the municipal officials responsible for adopting such policy, suffices to bring this case within the scope of any exception contemplated by footnote 29. See supra pages 241-42. Accordingly, I decline to join my colleagues in speculating, even with non-binding effect on future courts, as to the hypothetical circumstances under which taxpayers could be held directly responsible, whether in their role as voters or otherwise, including with respect to referenda. Imagining such hypothetical circumstances raises a series of fundamental questions about democratic theory, implicating a host of subtle variables in a system of 251 non-compulsory voting-all *251 of which I believe are best considered, not in the abstract, but in the concrete.
Whatever the nature of any exception created by footnote 29, I am guided here by the Supreme Court's view in Newport that "such an occurrence is sufficiently unlikely that we need not anticipate it here." 453 U.S. at 267 n. 29, 101 S.Ct. 2748. With that caution, I concur in the judgment.
[1] We do not speculate on whether punitive damages would be proper if a substantial minority opposed the unconstitutional rule.
[2] Because counsel conceded that he was not making an argument that the jury might have undervalued compensatory damages given its belief that it could award punitive damages, we express no opinion on whether, absent such a concession, a new trial on compensatory damages might be appropriate. Cf. Webster, 689 F.2d at 1229-30 (reversing both punitive and compensatory damages and remanding for a new trial on damages where the jury had awarded no compensation for damages sustained by the decedent or for the loss of his companionship to his parents, and noting that "the jury, in awarding punitive damages, [may have erroneously] thought it had covered all bases").
[1] A municipality is unlikely always to act rationally. Nevertheless, it is fair to assume that its behavior will be influenced by the extent to which it is made to bear the costs associated with its behavior. Indeed, § 1983, and Newport itself, are premised on that very principle. See Newport, 453 U.S. at 266, 101 S.Ct. 2748; Owen, 445 U.S. at 651-52, 100 S.Ct. 1398.
[2] These basic principles of the economic theory of deterrence are widely accepted, and have been applied to both tort and criminal law. See generally, e.g., Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169 (1968); see also Guido Calabresi, The Costs of Accidents (1970); A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L.Rev. 870 (1998).

[3] The formula is not unique to Professors Polinsky and Shavell. For a very similar analysis, see Robert Cooter & Thomas Ulen, Law and Economics 311-15 (2d ed.1997). I note that I express no opinion as to the conclusions reached by Professors Polinsky and Shavell regarding the availability of punitive damages in specific cases.
[4] It is possible that, in some circumstances, use of a multiplier formula might overdeter socially useful conduct. Litigation costs borne by the defendant themselves have a deterrent effect that may not be taken into account by a simple multiplier formula. And, although in a legal system that works efficiently, litigation costs would generally be a part of the social cost attributable to the harm caused by the defendant, unnecessary costs of administering such a system may properly be viewed as beyond the actual harm caused. Where a defendant is forced to bear such excess administrative costs, the multiplier formula might overdeter. Despite such failings, however, it seems likely that, in many instances, use of a multiplier will produce more accurate cost allocation than currently occurs.
[5] Punitive damages have frequently been awarded in strict products liability cases in which the premise for liability is the design and distribution of a defective product, rather than fault. See, e.g., Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 174 Cal.Rptr. 348, 383 (1981) (upholding a jury award of punitive damages against Ford for its manufacture of the Pinto, and holding that "punitive damages are recoverable in a nondeliberate or unintentional tort where the defendant's conduct constitutes a conscious disregard of the probability of injury to others"); Fischer v. Johns-Manville Corp., 103 N.J. 643, 512 A.2d 466, 480 (1986) (upholding a jury award of punitive damages against an asbestos manufacturer on a failure to warn theory, and holding that punitive damages were available in strict products liability actions when a manufacturer is "culpably indifferent to an unnecessary risk of injury" and "refuses to take steps to reduce that danger to an acceptable level").
[6] Cf. Polinsky & Shavell, supra note 4, at 890-91 ("[T]he adjective `punitive' may sometimes be misleading. . . . [E]xtracompensatory damages may be needed for deterrence purposes in circumstances in which the behavior of the defendant would not call for punishment."); see also Galligan, supra, at 13 (preferring the term "augmented awards" for punitive damages based solely on considerations of deterrence).
[7] In order to award such socially compensatory damages, the jury would have to calculate the probability that the defendant would otherwise evade full liability for its act. Such a calculation would rarely be precise. A rough estimate, however, would not be more unlikely than many other estimates that courts currently ask juries to make. Thus, juries are routinely required to estimate the monetary value of a plaintiff's pain and suffering, or of the loss sustained by a family as a result of a wrongful death, a sum that "defies any precise mathematical computation." Feldman v. Allegheny Airlines, Inc., 524 F.2d 384, 386 (2d Cir.1975) (quoting Floyd v. Fruit Indus., Inc., 144 Conn. 659, 136 A.2d 918, 927 (1957)) (internal quotation marks omitted); see also id. at 392 (Friendly, J., concurring dubitante) (noting the difficulties of making such an estimate). The dangers that might attach to letting fact-finders assess socially compensatory damages could be mitigated by permitting closer judicial control over these damages and by placing the burden on the party seeking such damages to introduce evidence as to the likelihood of escaping liability0907for example, proof that the defendant has tried to conceal its act, or evidence of the number of times a particular wrongful act has occurred and the number of lawsuits brought against the defendant. The case before us shows that, at least in some circumstances, it will be readily possible to ascertain how often a particular violation has taken place. Here, records were kept that allowed the City to estimate that about 65,000 arrestees were subjected to the strip-search policy.
[8] One could argue that allowing both socially compensatory and punitive awards runs the risk of overdeterrence. But, once the goals of social compensation and punishment are disaggregated, allowing a separate award of punitive damages could represent a societal judgment that, for certain conduct, a cost-benefit analysis is inappropriate. That might be the case, for example, if the "benefit" resulting from the defendant's conduct is socially illicit0907perhaps because it consists of pleasure in the victim's pain. This function of punitive damages renders them analogous to criminal penalties that seek not to achieve a socially optimal level of activity, but to discourage or even eliminate a particular activity altogether. See Becker, supra note 4, at 191.
Of course, to the extent that punitive awards were permitted in order to further this quasi-criminal function, it would be appropriate to reconsider the procedural protections that should attach before such an award can be made. Cf., e.g., Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968) (distinguishing between civil and criminal contempt and holding that the Seventh Amendment required a jury trial for serious criminal

contempt). Indeed, one disadvantage of the current system, which conflates punitive and social deterrence goals, is that what are actually punitive damages rather than socially compensatory damages can be awarded without adequate procedural safeguards and imposed on defendants who are not intentionally wrongful. Cf. cases cited supra note 7.
[9] In the case of constitutional torts by municipalities, socially compensatory damages could appropriately be paid into a federally administered fund. In other suits against municipalities, however, it would not make much sense to require that the extracompensatory damages be placed into the general state treasury. For the deterrence function would then be diluted, since some of the monies would likely return to the city. Rather, in order to preserve the desired deterrent effect, the damages would more properly be paid to a specific fund whose purpose, at least in theory, would be to attenuate the harm borne by those victims who did not receive compensatory damages. Thus, in cases of environmental damage, the fund might serve environmental purposes, and in auto injury cases, road safety. Such a fund might also be used to compensate victims whose damages had already been assessed to the defendant as a result of the multiplier and who, nevertheless, successfully sued later.
In establishing and controlling the use of such "limited purpose" funds, one should keep in mind the possible undesirability of having a significant part of general government revenues derive not from taxation, but from tort judgments. This problem is not, however, limited to or even primarily connected with awards of extracompensatory damages. See, e.g., Hanoch Dagan & James J. White, Governments, Citizens, and Injurious Industries, 75 N.Y.U. L.Rev. 354, 364-77 (2000) (discussing the settlement between the states and tobacco products manufacturers, which will require the payment of over $200 billion to the states in the next twenty-five years). It therefore must be addressed, if at all, at a more general level.
[10] This argument is, in effect, the obverse of the Newport Court's assertion that punitive damages imposed on municipalities punish "blameless or unknowing taxpayers." Newport, 453 U.S. at 267, 101 S.Ct. 2748. Both contentions depend on an assumption that the municipality and the taxpayers who compose it are wholly distinct entities0907an assumption that, as courts have recognized in the case of corporations, cannot withstand close scrutiny. Thus, in Fischer v. Johns-Manville, the New Jersey Supreme Court, upholding an award of punitive damages against an asbestos manufacturer, rejected defendant's argument that punitive damages "unfairly punish[ed] innocent shareholders" and declined its invitation to draw a distinction between a corporation and its shareholders, pointing out that shareholders have the power to affect corporate action:
It is the corporation, not the individual shareholders, that is recognized as an ongoing legal entity. . . . True, payment of punitive damage claims will deplete corporate assets, which will possibly produce a reduction in net worth and thereby result in a reduction in the value of individual shares. But the same is true of compensatory damages. Both are possible legal consequences of the commission of harmful acts in the course of doing business. To the same extent that damages claims may affect shareholders adversely, so do profitable sales of harmful products redound to their benefit (at least temporarily). These are the risks and rewards that await investors. Also, we would not consider it harmful were shareholders to be encouraged by decisions such as this to give close scrutiny to corporate practices in making investment decisions.
Fischer, 512 A.2d at 476.
State courts rejected the doctrine of charitable immunity on similar grounds. See, e.g., Flagiello v. Pennsylvania Hosp., 417 Pa. 486, 208 A.2d 193, 204 (1965) (repudiating charitable immunity as "inconsistent with the principle that `liability should fall upon the party best situated to adopt preventive measures and thereby reduce the likelihood of injury'") (quoting Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 324, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964)).
[11] The Supreme Court has held that punitive damages are properly assessed against individual defendants in § 1983 actions even for some unintentional violations of constitutional rights. See Smith v. Wade, 461 U.S. 30, 41, 51, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (holding that punitive damages can be obtained against individual defendants in § 1983 cases "without a showing of actual ill will, spite, or intent to injure" where the defendant has exhibited "reckless or callous disregard for plaintiff's rights"). I note that, to the extent that municipalities indemnify

their officials against such awards of punitive damages, the distinction drawn by the Newport Court between cities and individual city officials inevitably collapses.
Save trees - read court opinions online on Google Scholar.

 
 Ciraola v. City of New York, 531 U.S. 993 (2000)
121 S.Ct. 484 Supreme Court of the United States
Debra CIRAOLO, petitioner, v.
CITY OF NEW YORK, et al. No. 00-428. | Nov. 13, 2000.
Case below, 216 F.3d 236.

Opinion Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit denied.
Parallel Citations 121 S.Ct. 484 (Mem), 148 L.Ed.2d 457, 69 USLW 3330, 69 USLW 3333
	  

1