UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

ERICA MORENO and

KATTI PUTNAM,

Case No. 2:14-cv-13829

Plaintiffs,

v

RON HUGHES,

Defendant.

PLAINTIFFS’ BRIEF IN OPPOSITION TO MOTION IN LIMINE

Plaintiffs, by their undersigned counsel of record, submit this Brief In 

Opposition To Defendant’s September 8, 2015, Motion In Limine. Contrary 

to Defendant’s counsel’s representation to this Court, Defendant never 

Plaintiff explained the nature of this Motion or its legal basis. Furthermore, 

Defendant’s counsel never requested concurrence in this Motion. If he had, 

Plaintiffs’ counsel would have disclosed the binding and controlling 

authority that precludes the relief sought. 

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TABLE OF CONTENTS

STATEMENT OF ISSUES PRESENTED

...........................................................................................ii

CONTROLLING AUTHORITY................................................iii

INTRODUCTION

....................................................................................................1

FACTS 

............................................................................................3

LAW

.......................................................................................... 5

ARGUMENT

...........................................................................................7

I. THE COURT SHOULD DENY THE MOTION BECAUSE 

CONTROLLING AUTHORITY REQUIRES THAT THIS 

COURT PERMIT THE JURY TO DETERMINE DAMAGES 

BASED ON THE NATURE OF THE CONSTITUTIONAL 

DEPRIVATION, THE MAGNITUDE OF THE MENTAL 

DISTRESS AND HUMILIATION SUFFERED BY THE 

PLAINTIFF, AND ANY OTHER INJURY CAUSED AS A 

RESULT OF BEING DEPRIVED OF FEDERALLY 

PROTECTED RIGHTS.................................................12

CONCLUSION......................................................................14

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ii

.

STATEMENT OF ISSUES PRESENTED

Whether Plaintiffs in the 28 U.S.C. § 1983 constitutional tort case 

alleging that Defendant violated Plaintiffs’ Fourth Amendment rights when 

Defendant shot Plaintiffs’ dog can only recover damages in the amount of 

the value of their dog because Michigan civil damages law only permits 

such recovery?

Defendant answers “Yes”

Plaintiffs answer “No”

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iii

CONTROLLING AUTHORITY

Cases

Carey v. Piphus, 435 U.S. 247, 265, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978)

Smith v. Heath, 691 F.2d 220, 226-227 (6th Cir. Tenn. 1982) 

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 238-240 (U.S. 1969)

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INTRODUCTION

The Court should deny the Motion because in § 1983 cases such as 

this one, with respect to compensatory damages: 

although the amount of damages for the deprivation of an 

intangible constitutional right cannot be determined by 

reference to an objective standard, such as pecuniary loss, nonpunitive damages may be awarded. These damages may be 

special and the trial court should consider the following factors 

in making its award: the nature of the constitutional 

deprivation, the magnitude of the mental distress and 

humiliation suffered by the plaintiff, and any other injury 

caused as a result of being deprived of federally protected 

rights.

Smith v. Heath, 691 F.2d 220, 226-227 (6th Cir. Tenn. 1982) (affirming 

award of compensatory damages of $5,000 for the unconstitutional search 

and seizure, punitive damages of $5,000, $450 for lost property and an 

award of attorneys’ fees in the amount of $16,574.95). The Smith court also 

affirmed an award of punitive damages holding that “The same factors 

discussed above are relevant in the determination of the punitive damages . . 

. [defendant’s] actions were in fact willful thus justifying the awards of 

punitive damages.” Id. at 228. Finally, the Court affirmed an award of 

attorneys’ fees. Id. at 228 (awarding plaintiff’s hourly fees). 

As much as Defendant would like to re-cast this case as a property 

damage case, it is not. This is a Fourth Amendment case and the rights 

invoked in this Court are greater than Plaintiffs’ property rights in their dog 

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2

that Defendant shot while raiding the wrong house. Plaintiffs ask this Court 

to redress Defendant’s violation of Plaintiffs’ Fourth Amendment rights, for 

which 28 U.S.C. § 1983 provides them a private right of action. 

Accordingly, Plaintiffs invoke their federal Constitutional right and not 

merely state law property rights. Therefore, federal common law damages 

and punitive damages apply to this case. Basista v. Weir, 340 F.2d 74, 87 

(3d Cir. Pa. 1965) (“the federal common law of damages commands the 

issue of damages in the case at bar. We are also of the view that the federal 

law permits the recovery of exemplary or punitive damages). Furthermore, 

applying Michigan state property damage law to this constitutional tort case 

does not advance the interests that the Civil Rights Act was enacted to 

protect. Carey v. Piphus, 435 U.S. 247, 254, 55 L. Ed. 2d 252, 98 S. Ct. 

1042 (1978) (The basic purpose of a section 1983 damages award is to 

compensate persons for injuries caused by the deprivation of their 

constitutional rights). Finally, the Supremacy Clause (art. VI, cl. 2) of the 

United States Constitution precludes limiting Plaintiffs damages in this case 

because the Civil Rights Act provides for compensatory, punitive damages

and attorneys’ fees. Smith, supra; 28 U.S.C. § 1988(b). Indeed, an award of 

even nominal damages is sufficient to show that it found constitutional 

violation and thus to warrant, in the jury's discretion, an award of punitive 

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damages under the doctrine of Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 

1642, 55 L. Ed. 2d 252 (1978). Gumsey v. Crawford, 679 F.2d 666 (6th Cir. 

Ohio 1982). Thus, Defendant’s Motion is based on demonstrably false legal 

premises. Accordingly, the Court should deny the Motion. 

FACTS

On June 18, 2014, Plaintiffs owned 58-pound female dog named 

“Clohe.” Complaint at ¶ 9. On that date, Clohe was approximately fifteen 

years old. Id. at ¶ 10. Plaintiffs and Clohe resided at 1034 Alvord, Flint, 

Michigan 48507. Id. at ¶ 11. 

On June 18, 2014, Defendant along with several Michigan State 

Troopers and a City of Flint police officer arrived at Plaintiffs residence to 

execute a warrant for a fugitive named Matthew Mitchell. Id. at ¶ 14. Mr. 

Mitchell did not and never did reside or occupy Plaintiffs’ residence. Id. at ¶ 

15. Instead, Plaintiffs subsequently learned that Mitchell lived at 1020 

Alvord, which was located next door to Plaintiffs residence. Id. at ¶ 16. 

Meanwhile, Defendant Hughes entered into Plaintiffs’ back yard 

without a search warrant authorizing such entry. Id. at ¶ 17. At that time, 

Plaintiffs’ door to the back yard was open. Id. at ¶ 18. At that time, Clohe 

went into her back yard through the open back door of the house. Id. at ¶ 19. 

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Plaintiffs’ next-door neighbor, Jimmy Armstrong, witnessed 

Defendant Hughes shoot Clohe in the face as she walked down the stairs to 

go into Plaintiffs’ back yard. Id. at ¶ 20. Mr. Armstrong has signed an 

affidavit stating that Clohe was not attacking or threatening any officer at 

any time. Id. at ¶ 21. Mr. Armstrong’s Affidavit further states that 

Defendant Hughes “shot Clohe for no reason at all.” Id. at ¶ 22. Both 

Plaintiffs heard the gunshots and ran to Clohe’s aid. Id. at ¶ 23. Clohe 

sustained one gun shot wound to the muzzle and was bleeding from the 

wound. Id. at ¶ 24. Plaintiffs and Armstrong heard officers state that they 

had gone to the wrong house to search for the fugitive. Id. at ¶ 25. Next, 

officers shouted to Plaintiffs to take Clohe to the veterinary hospital. Id. at ¶ 

26. State Trooper Cavanaugh said to Plaintiffs that, “We’ll take care of 

this.” Id. at ¶ 27. Next Plaintiffs drove Clohe to the veterinary hospital. Id. 

at ¶ 28. Another Michigan State Trooper (who was not involved with the 

incident that culminated in shooting Clohe) pulled Plaintiffs over for 

speeding. Id. at ¶ 28. That State Trooper then escorted Plaintiffs to the 

veterinary hospital. Id. at ¶ 29. 

Clohe lost a portion of her tongue, a canine tooth and endured three 

surgeries to repair damage suffered from the gun shot injuries that Hughes 

inflicted on her. Id. at ¶ 30. Veterinary Medical Hospital, P.C., 3252 Miller 

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Road, Flint, Michigan 48507, removed a bullet and bullet fragments from 

Clohe. Id. at ¶ 31. Mr. Armstrong and other neighbors witnessed Defendant 

and several Michigan State Troopers remain on Plaintiffs’ property for about 

an hour after Plaintiffs took Clohe to the veterinary hospital, during which 

time they searched Plaintiffs’ back yard for shell casings and took 

photographs. Id. at ¶ 32. Following the shooting incident, Plaintiffs placed 

several phone calls to Michigan State Trooper Cavanaugh and Michigan 

State Trooper Durand about the incident. Id. at ¶ 33. No Michigan State 

Trooper or representative ever returned Plaintiffs’ calls. Id. at ¶ 34. 

In sum, Defendant went to the wrong house to execute an arrest 

warrant and shot Plaintiffs’ dog without any reasonable basis for doing so. 

Police officers recognized and acknowledge their mistake and told Plaintiffs 

that they would “take care of this.” Defendant did not “take care of this.” 

No citation of any sort was filed against any Plaintiff. 

LAW

A primary legal issue in this case is whether Defendants’ shooting of 

Lexie was an unreasonable seizure. San Jose Charter of the Hells Angels 

Motorcycle Club v. City of San Jose, 402 F.3D 962, 977-78 (2005) (“the 

Fourth Amendment forbids the killing of a person's dog, or the destruction 

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of a person's property, when that destruction is unnecessary--i.e., when less 

intrusive, or less destructive, alternatives exist”). 

The Fourth Amendment of the Constitution of the United States 

provides:

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no warrants shall issue but upon 

probable cause, supported by oath or affirmation, and 

particularly describing the place to be searched, and the persons 

or things to be seized.

42 U.S.C. Section 1983 provides in pertinent part that:

Every person who, under color of any statute, ordinance, 

regulation, customer usage, of any state ... subjects, or causes to 

be subjected, any citizen of the United States ... to the 

deprivation of any rights, privileges, or immunities secured by 

the Constitution of laws, shall be liable to the party injured in 

an action at law, suit in equity, or other proper proceeding for 

redress.

The three essential elements of a § 1983 Fourth Amendment cause of 

action are: (1) an act under color of law (2) which constitutes a seizure (3) 

which is objectively unreasonable. See Brower v. County of Inyo, 489 U.S. 

593, 599, 103 L. Ed. 2d 628, 637, 109 S. Ct. 1378 (1989) (holding that an 

unreasonable Fourth Amendment seizure is sufficient to establish § 1983 

liability). 

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ARGUMENT

The United States is unique in the world because our laws provide 

powerful and effective remedies against police misconduct. In particular, the 

Federal Civil Rights Act, 42 U.S.C. § 1983, was enacted after the Civil War 

to provide citizens with a remedy for unlawful police conduct.

1

 The 

determination of the amount of damages in such cases to be awarded is left 

to the discretion and good judgment of the fact finder as guided by the facts 

of the particular case. Tullos v. Corley, 337 F.2d 884 (6th Cir. 1964). This 

concept has been specifically applied in section 1983 cases for both punitive 

and compensatory damages. The court in Smith v. Heath, 691 F.2d 220, 226 

(6th Cir. Tenn. 1982) said it concisely: 

As with compensatory damages, the award of punitive damages 

is within the discretion of the trial court. The allowance of such 

damages inherently involves an evaluation of the nature of the 

conduct in question, the wisdom of some form of pecuniary 

punishment, and the advisability of a deterrent. Therefore, the 

infliction of such damages, and the amount thereof when 

inflicted, are of necessity within the discretion of the trier of 

fact. Stolberg v. Members of the Board of Trustees for the State 

Colleges of Connecticut, 474 F.2d 485, 489 (2d Cir. 1973) 

(quoting Lee v. Southern Home Sites Corp., 429 F.2d 290, 294 

(5th Cir. 1970). See also, Basista v. Weir, 340 F.2d 74 (3d Cir. 

1965); Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978) ("general 

principles of damages apply to a civil rights action").

 1 See Speech 1 of Representative Butler, Congressional Globe, 42nd Congress, 1st 

Session 807 (1871), quoted in Crumpton v. Gates, 947 F.2d 1418, 1421 (9th Cir. 1991).

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In particular, with respect to compensatory damages, the Smith Court 

held that:

The basic purpose of a section 1983 damages award is to 

compensate persons for injuries caused by the deprivation of 

their constitutional rights. Carey v. Piphus, 435 U.S. 247, 254, 

55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978) and the cases cited 

therein. In guiding lower courts as to which injuries are 

compensable, the Carey court at 264 states that emotional 

distress caused by a deprivation is compensable under section 

1983.

The Seventh Circuit in Hostrop v. Bd. of Jr. College Dist. No. 

515, 523 F.2d 569, 579-80 (7th Cir. 1975), cert. denied, 425 

U.S. 963, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976), held that, 

although the amount of damages for the deprivation of an 

intangible constitutional right cannot be determined by 

reference to an objective standard, such as pecuniary loss, 

non-punitive damages may be awarded. These damages may 

be special and the trial court should consider the following 

factors in making its award: the nature of the constitutional 

deprivation, the magnitude of the mental distress and 

humiliation suffered by the plaintiff, and any other injury 

caused as a result of being deprived of federally protected 

rights.

In Konczak v. Tyrrell, 603 F.2d 13 (7th Cir. 1979), cert. denied, 

444 U.S. 1016, 62 L. Ed. 2d 646, 100 S. Ct. 668 (1980), a case 

factually similar to the one presently before the court, the 

Seventh Circuit upheld awards of $12,500 in compensatory 

damages to a husband and wife, although they proved only 

$576 in lost wages. In that section 1983 action, the husband 

had been unlawfully arrested, the wife unlawfully detained, and 

their dwelling unlawfully searched with evidence unlawfully 

seized. The court rejected the argument that there was no proof 

of actual damages and pointed to "less quantifiable damages in 

the form of mental distress, humiliation, loss of reputation, and 

other general pain and suffering resulting from the arrest, 

detention, search and seizure, imprisonment, confinement to a 

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mental institution, and prosecution of three criminal 

complaints." Id. at 17.

The importance of taking into account these tangible factors is 

seen in another section 1983 case, Baskin v. Parker, 602 F.2d 

1205 (5th Cir. 1979). In Baskin, the court reversed the district 

court's damage award and, on remand, required that the district 

court award damages for humiliation and emotional distress.

In Vetters v. Berry, 575 F.2d 90 (6th Cir. 1978), this court 

upheld a jury award of $1,040 in compensatory damages and 

two awards of punitive damages for $25,000 and $10,000 in a 

section 1983 action. Plaintiff Vetters had been peacefully 

assembled, then was ordered to go home, assaulted and beaten, 

unlawfully searched, arrested and held in custody, and later 

unlawfully charged. In determining whether the awards were 

excessive, this court quoted Judge Robert Taylor in Gaston v. 

Gibson, 328 F. Supp. 3 (E.D. Tenn. 1969). Gaston was a Civil 

Rights Act claim involving injuries inflicted on a 17-year-old 

college student during the course of an alleged arrest. Plaintiff 

Gaston's medical bills were $736.60. In sustaining awards of 

$10,000 compensatory damages and $30,000 punitive damages, 

Judge Taylor stated: 

"Each defendant's main contention is that the 

verdict of $10,000.00 compensatory and 

$30,000.00 punitive damages is excessive and 

shows prejudice by the jury. There are several civil 

rights cases where verdicts were less than a total of 

$10,000.00. However, in suits where punitive 

damages are proper, there have been larger verdicts. 

In Butts v. Curtis Publishing Company, 225 F. 

Supp. 916 (N.D. Ga. 1964), a verdict of 

$400,000.00 punitive was held proper in a libel and 

slander case. In Bucher v. Krause, 200 F.2d 576, 

587 (C.A.7, 1953), $100,000.00 was held proper 

when a gunshot wound caused serious and 

permanent damage to plaintiff's buttocks. In 

Reynolds v. Pegler, 223 F.2d 429 (C.A.2, 1955) 

$1.00 compensatory damages and $175,000.00 

punitive damages in a libel and slander case were 

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approved. In addition to obvious common law torts 

defendants committed, the entire procedure for 

handling juvenile offenders in Tennessee was 

disregarded. T.C.A. §§ 37-250, 37-251, 37-252. 

Even procedural rights given adult offenders were 

not observed. T.C.A. § 40-806. The conduct of 

defendants showed disregard for procedural 

safeguards which our Anglo-American system has 

established. This court is reluctant to invade the 

particular province of the jury in evaluating the 

value of civil rights. Collum v. Butler, 288 F. Supp. 

918 (N.D. Ill. 1968). [23] The shocking conduct 

shown rebuts any inference of prejudice and 

passion in the jury's verdict.

No formula exists to determine with precision compensatory 

damages. The amount is left to the sound discretion of the fact 

finder. Considering the evidence in the present case in the light 

most favorable to the plaintiffs, the awards of compensatory 

damages were well within the proofs.

Smith v. Heath, 691 F.2d 220, 226-227 (6th Cir. Tenn. 1982) (affirming 

award of compensatory damages of $5,000 for the unconstitutional search 

and seizure, punitive damages of $5,000, $450 for lost property and an 

award of attorneys’ fees in the amount of $16,574.95). The Smith Court also 

noted that punitive damages are also permitted in § 1983 claims: “punitive 

damages have been held to be allowed on the basis of punishment of the 

wrongdoer, not so much on the nature and extent of the injury as on the 

'oppression of the party who does the injury. Smith, 691 F.2d at 227-228. 

The Court went on to affirm the award of punitive damages, holding 

that, “The same factors discussed above are relevant in the determination of 

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the punitive damages. Upon review, the facts herein recited support the fact 

finder's conclusion and considered judgment that Rohtert's actions were in 

fact willful thus justifying the awards of punitive damages.” Smith, 691 

F.2d at 228. 

Finally, the Court affirmed the award of attorneys’ fees:

By the language of 42 U.S.C. § 1988, Congress provided that 

an award of attorney fees to prevailing parties in actions 

brought pursuant to section 1983 is within the sound discretion 

of the district court. However, the court's discretion is narrow. 

The prevailing party should "ordinarily recover an attorney's 

fees unless special circumstances would render such an award 

unjust." Northcross v. Board of Ed. of Memphis City Schools, 

611 F.2d 624, 633 (6th Cir. 1979), cert. denied, 447 U.S. 911, 

64 L. Ed. 2d 862, 100 S. Ct. 2999 (1980), citing the Senate 

Report No. 94-1011, reprinted in 1976 U.S. Code Cong. & 

Admin. News, p 5908. See, Dawson v. Pastrick, 600 F.2d 70, 

79 (7th Cir. 1979) ("a prevailing plaintiff should receive fees 

almost as a matter of course."). Cf., Newman v. Piggie Park 

Enterprises, Inc., 390 U.S. 400, 19 L. Ed. 2d 1263, 88 S. Ct. 

964 (1968).

Smith and M. E. Smith have prevailed in this action and are 

thus entitled to an award of attorney fees. No special 

circumstances exist in this case which would make the award of 

attorney fees unjust.

In Northcross at 642, to determine the amount of the award, 

"We conclude[d] that an analytical approach, grounded in the 

number of hours expended on the case, will take into account 

all the relevant factors, and will lead to a reasonable result." 

Here, the district judge, in a three-page detailed memorandum, 

set forth how the award was computed. He began by reviewing 

some of the practical and legal problems faced by the attorneys 

in preparing this case. He noted such things as the unpopularity 

of suits against police officers, the difficulty in getting facts and 

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evidence, the necessity for the number of firms involved, and 

the computation of the time involved. He then used the number 

of hours and the attorneys' normal billing rates as a basis to 

compute the award.

Smith, 691 F.2d at 228. 

I. THE COURT SHOULD DENY THE MOTION BECAUSE 

CONTROLLING AUTHORITY REQUIRES THAT THIS 

COURT PERMIT THE JURY TO DETERMINE DAMAGES 

BASED ON THE NATURE OF THE CONSTITUTIONAL 

DEPRIVATION, THE MAGNITUDE OF THE MENTAL 

DISTRESS AND HUMILIATION SUFFERED BY THE 

PLAINTIFF, AND ANY OTHER INJURY CAUSED AS A 

RESULT OF BEING DEPRIVED OF FEDERALLY 

PROTECTED RIGHTS

As demonstrated above, compensatory damages in § 1983 cases are 

awarded based upon the deprivation of an intangible constitutional right, 

although it cannot be determined by reference to an objective standard, such 

as pecuniary loss. “These damages may be special and the trier of fact

should consider the following factors in making its award: the nature of 

the constitutional deprivation, the magnitude of the mental distress and 

humiliation suffered by the plaintiff, and any other injury caused as a 

result of being deprived of federally protected rights.” Smith, 691 F.2d at 

226-227. 

The Court should reject Defendant’s unsupported argument that 28 

U.S.C. § 1988 requires that this Court is bound to follow state law and limit 

damages based on Michigan law precluding recovery of emotional distress 

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or mental anguish damages. The Supreme Court of the United States of 

America has held construed 28 U.S.C. § 1988 to mean “that both federal 

and state rules on damages may be utilized, whichever better serves the 

policies expressed in the federal statutes . . . . The rule of damages, 

whether drawn from federal or state sources, is a federal rule responsive to 

the need whenever a federal right is impaired.” Sullivan v. Little Hunting 

Park, Inc., 396 U.S. 229, 238-240 (U.S. 1969). 

Moreover, contrary to Defendant’s claim, emotional distress damages 

are recoverable in § 1983 cases. Carey v. Piphus, 435 U.S. 247, 265, 55 L. 

Ed. 2d 252, 98 S. Ct. 1042 (1978) (holding that emotional distress caused by 

a constitutional deprivation is compensable under section 1983); Westerfield 

v. United States, 483 Fed. Appx. 950, 955-956 (6th Cir. Ohio 2012) (The 

fact that plaintiff has not suffered wrongful imprisonment does not 

necessarily preclude a showing that defendants' suppression of Brady 

material resulted in a denial of plaintiff’s constitutional right to a fair trial 

compensable in damages under 42 U.S.C. § 1983 for such injury as he is 

able to prove—e.g., impairment of reputation, personal humiliation, mental 

anguish and emotional distress, and including potentially punitive damages); 

Baumgardner v. Secretary, United States Dep't of Hous. & Urban Dev., 960 

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F.2d 572 (6th Cir. 1992) (affirming award of emotional distress damages in 

civil rights act case). 

CONCLUSION

Therefore, Plaintiffs requests that the Court deny the Motion. 

Respectfully submitted,

Olson PLLC

s/Christopher S. Olson_______ 

Christopher S. Olson (P58780)

32121 Woodward Avenue

Suite 300

Royal Oak, Michigan 48073

(248) 672-7368

(248) 415-6263 Facsimile

colson@olsonpllc.mygbiz.com

Attorney for Plaintiff

Dated: September 22, 2015

Detroit, Michigan

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CERTIFICATE OF SERVICE

On September 22, 2015, I served the attached Brief In Opposition To 

Defendant’s Motion In Limine via the Court’s ECF system.

Respectfully submitted,

Olson PLLC

s/Christopher S. Olson_______ 

Christopher S. Olson (P58780)

32121 Woodward Avenue

Suite 300

Royal Oak, Michigan 48073

(248) 672-7368

(248) 415-6263 Facsimile

colson@olsonpllc.mygbiz.com

Attorney for Plaintiffs

Dated: September 22, 2015

Detroit, Michigan

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