1

RE EN A R AG GI , Circuit Judge , conc urring in part a nd d issentin g in p art: I concur in t

he majori ty

opi nion to the ex tent it reverses the grant of judgment as a matter of la w to Cro ssan . I respe ctfully disse nt, however, from Part III. C.2, which concludes that the dis tri ct court

committed fundamental error in failing to cha rge the jury that it cou ld award Kerman comp ensatory damages for l ost l ibert y bas ed on the l oss of his time whil e he
was unl aw fully c onfined
. See M aj. Op . at [74-75] (“[T]he trial court should have i nformed the jury that i f it f

ound Crossan act ed w ithout p robable c ause it should award Kerman compensati on for the loss of his libert y. . . . Kerman remains entitled t o have a jury assess the compensati on he should be awarde d on his Fourt h Amendment claim agai nst Cross an and his state-law claim s aga inst C rossan and th e City for his l oss of the time spent in the postsearch c onfinem ent withou t his consent.”). As this court recently reiterated, the standard for est ablis hing that a civi l jur

y charge is fun dam enta lly erro neo us u nde r Fe der al R ule o f C ivil P roc edu re 5 1 is s tern . See SC S Comm unications, Inc. v. Herrick Co. , 360 F.3d 329, 343 (2d Cir. 2004) . More is requir ed th an “plai n e rror,” as th at ter m is und ersto od i n th e crim inal c ont ext. Id. An error wil l be deemed fun dam ental in a civil c ase o nly if it is “so s erious and flagr ant that it goes to t

he very integ rity of th e tria l.” Id. (quoti ng Fashion Bouti que of Sho rt Hil ls , I nc . v . F en di USA, Inc. , 314 F.3d 48, 61 ( 2d Cir. 2002) (quoti ng Shade ex rel. Velez-Shade v. Hous. Auth. of New H aven , 251 F.3 d 30 7, 31 2 (2 d C ir. 20 01) )). I do not t hink thi s is s uch a case. As the major ity

opinion expl ains, an indivi dual subj ect t o false i mprisonment may be2

compensatednot only

for tangible inj uries , suchas out- of-pocket expenses andlost wages, but also for

intangible injuries, such a s loss of time, ph ysical discomfort or inconveni ence, mental sufferi ng , and humil iat ion
. See M aj. Op . at [66] ; see also Raysor v. Port Auth. of New York & N ew Jersey , 768 F.2d 34, 39 ( 2d Cir. 1985) ; W. Page Keeton et al., Prosser & Keeton on Law of T orts § 11, at 48 (5 th ed. 1 984 ). Precis ely becau se fals e imp risonm ent is “a dignator

y t ort, ” 59 N.Y. Jur. 2d False I mprisonment and Malicious Prosecut ion § 147, at 406 (2003), the inj ur ies gen erall y resu lting fro m it a re lik ely to b e inta ngi ble. Thu s, in Ra ysor v. Po rt Author ity

of New Y ork & New Jersey , 768 F.2d at 39, a false arres t case pursued by

a pro se plaintiff, this court r uled that the di stri ct court committed fundamental
error w hen it failed to charg e the ju ry that it cou ld award monetary damages for inta ngib le injuries, even though no such c harge was reques ted. Relying on Raysor , the majorit y concludes that

in thi s case t

he di strict court committed

a simil ar fundamentalerror by fai ling sua sp onte to charge the jury that it could
com pen sate Ke rma n fo r the intan gib le inj ury of lost tim e. I am no t convince d. In Raysor , the error was a totalfail ure to i nstruc t the jur y t hat int angible injuries were compensa ble for false impris onment . By contr ast, in thi s case the distri ct court did no t overlook K erman’s entitlementto compensat ion for i ntangibl e injuries. To the contr ary , it specifi call y i nstruc ted the jury that i t could award damages for any “emotionalmental angui sh” that Kerman had sustained as a res ult of hi s fals e impris onment. Tri al Tr. at 76 0. Bec ause the inta ngib le injuries cau sed by fa lse im priso nm ent a re “la rge [ly] . . . m enta l,” Prosser & Keeton § 11, at3

48, this charge affor ded the j uryconsider able l atit ude in making a compensatory award. Indeed, the ch arge c om ported with Ke rman ’s trial strateg y. In arguin g fo r dam ages in summation, Kerm an’s counsel foc used exclus ively on the mentalhumili ation hi s cli ent had sufferedas a res ult of t he unlawful det ention , re peate dly emp hasizin g the e xtent o f his emb arrassm ent, particu larly in b eing rem ove d fr om his h om e in a restr aint b ag. See Trial Tr. at 714 -17, 7 21-2 3. N ow here in sum ma tion di d counsel al lude to any l oss-of- time i njuri es sustained by Ke rman . Thu s, the erro r in this case is not, a s in Raysor , the co urt’s fa ilure to instructthe jury tha t it could com pens ate plaintiff for intan gib le inj urie s. Nor is it a failure to instruct t

he jury that i t could c om pensate p laintiff for t he specif

ic int angible injuries argued by plaintiff i n summation. Inste ad, the ident ifie d charging e rror is the court’s failure to instruc t the jury tha t it could com pens ate pla intiff for a ty pe of int angible injur

y never argued by

plaintiff: the los s of ti me. In concludi ng that t

his er ror i s fundam en tal, the major ity appears t o equate “l oss of time” with “los s of liberty ,” and t o hold that any unl awful detent ion that spans sever al hours
nece ssarily inv olv es lo st tim e tha t sho uld rece ive a com pen sato ry aw ard
. See Ma j. Op
. at [74-75] . I must

disagr ee. Pr eli m in ar ily, I do not understand “lost ti me” and “lost liberty ” t o be ident ical concepts. “L os s o f li be rty” describes the Fourth Amendment violation t hat occur s when a person is confined againsthis w ill by the go vern men t; it is the const itutional t ort. “Loss of time ,” on th e othe r han d, is sim ply one o f a va rie tyof c ompensable i njuri es, t angible and1 On e com men tator ca talogu es thes e injurie s to inclu de los s of tim e, physic a l

discomfort or in conveni ence, phy sicalinjur y or injur y t o health, mentalsufferi ng, humiliation, business loss, harm to repu tation o r credit, lo ss of family company, as well as anyspe cial d am age s un iqu e to th e pa rticu lar p laint iff’ s ca se. See Prosser & Keeton § 11, at 48
. Anot her li sts ment al angui sh or suffering, s hame and humili ation, ridi cule and sc orn, moral and m ental d egrad ation, o nero us an d le ngthyint errogat ion, indignit y and di sgrace, damage to repu tation, inte rruptio n to or loss o f bu siness, lo ss of e arning s or cre dit, loss of or damage to proper

ty , phy sicalinjur

y, including medical expe nses, the lo ss of fa m ily c om pa ny, dist urbance of one’s nor

mal li fe, as wel l as l egal and ot her expenses associ atedwith secur ing relea se, with no dis tinct mention of “lost

time. ” See 59 N .Y. Jur. 2d False I mprisonment and Malici ous Prose cution§ 14 7, at 40 6-08 ; see also N.Y . Pat tern Jury In struc tion s 3.5 Com mentary at 49 (ci ting ca ses holding that pl ainti ffs who suffer fal se impri sonment may recover comp ensatory dama ges for ment al ang ui sh, shame a nd h um iliation, inju ry to reputation, physi cal suffering o r bod ilyinjuries, loss of e arnings or busine ss, and medical and lega l exp ens es). At least one dist rict court i n this circui t appear s to have us ed “d ep riv ati on of lib er ty” in charging a

jury to descr ibe the intangible inj ur ies to a p erson ’s dign ity that could result from false im prison men t in orde r to disting uis h tho se inju ries from the pai n and sufferi ng attributa ble to diagnosedphysi cal a nd m enta l inju ries. See Gardn er v. Federa ted De p’t Stores, Inc. , 717 F. Supp. 136, 137 -38 (S.D .N.Y . 198 9), aff’d in pa rt and vaca ted in part , 907 F.2d 1348 (2d Cir. 1990). I t seems t o me more confusing t han helpful to use “deprivati on of liberty,” the c onstitu tional to rt, to refe r to a s ubsetof t he i nj ur ie s that

canre sult t

her efr om. 4 intangible, that can result from a loss of

lib er ty. 1 A loss of liberty , by its elf, does not warr ant
a compensatory

damages award any

mo re th an a ny oth er co nstitu tion al vio latio n. This is not to ignore t

he seri ousness of cons tit utionalviolations. The law vindicates suc h viol at ions through aw ard s of

nom inal d am age s, ev en a bse nt p roo f of actu al inj ury. See M em ph is C m ty. Sch . Dist. v. Stachura , 477 U.S. 299, 308 n.11 (1986) (“By maki ng the depri vationof such rights acti onable for

nominal damages wit

hout proof

of actualinjur

y, the law recognizes t

he importanc e to org anize d soc iety that th ose ri ght s be sc rupul ous ly obs erved ; b utatth e s ame time, it r emains tr

ue to the principle that subst antia l damages shou ld be a wa rded only to2 I do not r ead cases s uch as Hallenbeck v. City of Albany , 99 A .D .2d 639, 47 2 N.Y.S.2d 187 (3d Dep’t 1984) and Woodard v. City of Albany , 81 A.D.2d 947, 439 N.Y.S.2d 701 (3d De p’t 1 981 ), cite d by th e m ajor ity, see M aj. Op . at [66-67] , to hold otherw ise. In each of those ca ses, the court s vacate d excessi ve jury awards in fal se arr est cas es beca us e plaintiffs fail ed to demonstr ate “ substantial physical o r men tal injury,” ord ering n ew trials unless the pla inti ffs agreed t o redu ced ve rd ict s o f $ 10 ,00 0 a nd $7 ,50 0 r es pe cti ve ly. Hallenbeckv. C ity of

Albany , 99 A.D .2d at 640, 47 2 N.Y .S.2d at 189 (emph asis added ); accord Wo odard v. City of Albany , 81 A.D.2d at 947, 439 N.Y.S.2d

at 702. In neit

her case, how ever, did the cour t sugg est that if the pla intiffs w ent to tria l, the juri es w ould have to award them some damages for l ost l ibert y, even absent

a showing of p hysical or mental in ju ry. Similarly

in Gardner v. Federate d Department St ores, Inc. , 907 F.2d at 1353, the case in which the district court label ed injuries to p laint iff’ s dig nity as a “de priv ation of lib erty,” this court or dered a new tria l unles s plai ntiff accepted $50,000 in l ieu of the jury ’s exces sive award of $150,000. We did not, however, suggest t hat pla inti ff

could rec over such adamage award with out p roof

of an y injury to her d ignity. In fac t, the evid ence appears t o have inclu ded spe cific pro of o f hu milia tion
. Id. at 13 50. 5 com pens ate actu al inj ury . . . .” (quoting Carey v. Piphus , 435 U .S. 247 , 266 ( 197 8))); see also Shain v. El lis on , 273 F.3d 56, 67 (2d Cir. 2001) (uph olding nom inal aw ard o f $1 .00 in
case of unlawful st

rip se arch). But to recov er com pens atory dam ages for a lo ss of lib erty in
a § 1983 acti on, a pl ainti ff must show that he suffered an injur

y com pensable unde r the
common law of to rts. See Me mph is Cmty. Sch. D ist. v. Stachura , 477 U.S. at 306; Carey v. Piphus , 435 U.S. at 258-59. 2 “Loss of time” i s an inj urythat has lo ng b een c ogn izable at common law . Its focus, how ever, is no t on th e ge ner al lo ss of l ib erty , b uton adi sc re te for m of e con omi c harm: plaintiff’s inab ility to w ork
. See 22 A m. Jur. 2d Da mages §§ 138, 139, 158 ( 2003); 25 C.J. S. Damages § 54, at

391-92 (2002); 36 N.Y. Jur. 2d Damages § 68 , at 118 -19 (1 984 ); see also Southwester

n Brewery & Ice Cream Co. v. Schmidt , 226 U.S. 162, 169 (1912) (Holmes,3 Although the maj orit y as sert s that

lost time encompass es inj uries that go beyond t he econ om ic and th e psych ic, it does not identify what these are or h ow a district c ourt sh ould instructa jury

to dis tingui sh among these i njuri es to ens ure reas on able general damages aw ard s. 6 J.) (noting that jury was inst ru ct ed t o “c ons id erth e pl ai nt if f’ s l oss of t ime with refere nce to h is ability to earn mo ney”); Kies v. Binghamton R.R. Co. , 177 A.D. 242, 245, 16 3 N .Y.S
. 736, 739 (3d Dep’t

1917) (hol ding that

dama ges for

lo ss of t ime requir e proof of the value of servi ces that

an injur ed party

could have per formed) . Loss of t ime is a mor e expansive conceptthan los t wages. I t compensat es a plaintiff for his lost

capacit y t o earn, and may be soughteven by aplaintiff who was unemploye d at the time o f the inju ry. See Espana v. United Stat es , 616 F.2d41, 43 n.2 (2 d Cir. 198 0); Restate ment (Second) of Torts § 924( b) & cm t. c (1979); 22 Am. Jur. 2d Damages § 15 8, at 169 ; 3 6 N. Y. Jur. 2d Damages § 68, at 118-19; see also C. McCormick , Ha ndbook on the Law of Damages § 87, at 309 (1935) ( McCormick on Damages ) (obser ving that the value of lost time can be s hown by “opini on evidence of w hat pla intiff’s s ervice s are w orth in th e loca l mark et”). Fo r th is reason,
comm entators view lost ti me as inher ent in f alse i mprisonment and compensable t hrough a general dam ages aw ard u nless, o f cou rse, par ticular lo st earn ing o ppo rtunities a re pro ved to warrantspe cific dam age s. McCormick on Dam ages § 10 7, at 3 76. In th is re spe ct , l ost ti me is the economic c ounterpar t to t he psy chic i njury

also i nherent in fal se impris onm ent: inter ference w ith a p er so n’ s a bi lity t o enjo y lif e. 3 This inj uryis al so recogni zed and
com pen sate d ge ner ally at c om mo n law , but as a fo rm of mental angui sh and sufferi ng, see4 I expect it will be a rare case in w hich a jury decides no t to award a ny compe nsatory

damages for mentalanguish a nd suffering to a plaintiff w ho has b een detaine d for m ore than a trivial am oun t of tim e in vio lation o f the F ourth Am endm ent. Nevertheless, for the r easons stat ed by t

he majori ty , I agr ee that we must defer t o the jur y’ s decis ion not t o award Kerman any su ch d am age s. 7 id. , the injur

y charged by t

he court and rejec ted by the jur y i n Kerman’s case. 4 Kerm an’s decisi on n ot to seek damages for loss of time, but

to focus, inst ead, on obtaining a c omp ensatory award based on the pain and mentalanguish experienced dur ing his detent ion cannot

be deemed s trategica lly unreaso nable . Kerm an’s so mew hat-fra gile mental stat e on the dat e of the arrest wo uld have made it difficult to assert that hi s earni ng capa city at the time was particularly high. On the other hand, counselcould, and did, suggest th at Kerman’s vulner abili ty made his mentalanguish par ticul arly acute. Where counsel mak es a str ategi c decisi on to argue one ty pe of int angible injur

y and not

another, I do not think the dis tri ct court

commits fundament al err or bycha rging only the intangible injury theory pursued. In sum , I do n ot think the inte grity of Kerman’s tr ial was compromi sed bythe dis tri ct court’s fail ure to charge los s of ti me, a theor y of economi c injur

y not pursued by

plaintiff. Nor, in li ght of Me mph is Com mun ity School District v. Stachu ra , do I t hink the tri al’s integrity can be quest ioned based on t he cour t’s failure to instru ct the ju ry that it cou ld award comp ensatory damages for a l oss of liberty in the ab stract, withou t regard to any injury compensab le atcomm on law . The district co urt hav ing p rope rly charge d the ju ry that it could comp ens at e Ker

man f orment al ang ui sh and s uff er in g – afor

m of inta ngible injury8

recogniz ed at common law, l ong associ ated with unlaw ful co nfine men t, and e xclus ively pursuedby pl ainti ff – I cannot conclude t

hat there was a fundamental e rror in the char ge
wa rran ting a ne w tr ial. A cco rdin gly, on this p oin t, I res pec tfull y disse nt.