I. PRELIMINARY JURY INSTRUCTIONS





1. Members of the Jury, you have been selected to try this case. Will you all please stand and take the juror's oath. Will each of you promise to try this case truly, fairly, without bias and prejudice, on the facts and the law alone?

2. The trial will begin in just a few minutes. Before it does, I would like to explain to you the process we will use. This trial will last several days. During the trial, there will be times when the Court takes breaks which are called recesses. During these recesses you must not talk about this case among yourselves or with anyone else. Also, during the trial, do not talk to the plaintiff Marianne Moore or the defendants William Hunt and James Riley, nor to their lawyers or any of the witnesses. If anyone tries to talk to you or influence you about anything under consideration in this trial, you should immediately report this to the Court.

3. You should keep an open mind throughout the trial. You should not form or express a final opinion before the trial is over. You should keep from reaching a conclusion on the case until you have heard all the evidence, the arguments of the attorneys, and the final instructions on the law.

4. The trial will proceed as follows: First, the attorneys will make opening statements. These statements are previews of what the attorneys expect the evidence in the trial to be. They are not evidence themselves. Second, witnesses will be called to testify. They will be placed under oath and questioned by the attorneys. Marianne Moore will call her witnesses first, followed by witnesses for William Hunt, James Riley, and the City of Bloomington. It is particularly important at this stage that you not begin to make up your mind or form an opinion until you have heard the witnesses from both sides.

5. During the trial the attorneys may introduce documents or other exhibits as evidence, and they may be given to you to examine. If so, you should examine them carefully, one person at a time, and without any comment or discussion.

6. It is an attorney's right, and it may even be their legal duty, to object to testimony or evidence if they believe it is being offered in violation of the rules of evidence or procedure. When I decide that an objection is correct I will sustain it, and you should act as if you never saw the evidence or heard the attorney's question or the witnesses' answer. There also may be times when I will ask you to disregard something you have heard. I realize this is a difficult process, but insofar as possible, you must not consider evidence which I have instructed you not to consider. If I decide that the objection is not correct, I will overrule it. You should not give that evidence any more weight or less weight than you would have without the objection.

7. During the testimony of witnesses, you may find it helpful to take notes on what they have said. You have been supplied with notebooks and pencils. Do not feel that you have to take notes.

8. Normally, the attorneys conduct the questioning of witnesses. However, if you wish to ask additional questions of the witnesses after the attorneys are done, you may do so if you write those questions down and deliver them to me. However, as you are aware, trials are conducted according to fairly complicated rules of evidence and procedure. There is always a possibility that a question you will want to ask cannot legally be asked under the law. In that case I will simply inform you that your question cannot be asked or, I may rephrase your question.

9. After all the witnesses have testified the attorneys will make final arguments. These statements, too, are not evidence. You may accept or reject these arguments as you see fit. If the attorneys summarize the evidence differently than the way you remember it, your own collective recollection of the facts will control.

10. Finally, just before you retire to consider your verdict, I will give you further instructions on the law that applies in this case.

11. The case you are going to hear involves allegations by Marianne Moore that she was the victim of sexual harassment while employed by the City of Bloomington, and that she was fired in retaliation for telling a news reporter about her claim of sexual harassment. The defendants are city officials. They deny both allegations. They deny that any sexual harassment took place, and claim that Ms. Moore was fired because she did not perform adequately at her job.

II- FINAL CHARGE TO THE JURY


1. Members of the Jury, it is now my duty to instruct you in the law that applies to this case. It is your duty to follow the law as I give it to you. You must consider all the instructions as a whole -- you may not single out certain instructions and disregard others.

2. As jurors it is your duty to determine the facts and to determine them only from the evidence in this case. Once you determine what the facts of the case are, you must apply the law to them. You must not let any sympathy or prejudice affect your decisions.

3. You must arrive at your verdict by a unanimous vote.

4. From time to time the Court has ruled on the admissibility of evidence. You must not concern yourselves with the reasons for these rulings. You must act as though you never knew of questions or exhibits if I instructed you to disregard them.

5. You are the sole judges of the facts. Those facts come from witnesses and documents. You are the sole judges of the credibility of those witnesses. You may consider any matter that makes you think the witness is being more or less truthful, such as the way the witness looks and sounds, the witness' ability and opportunity to perceive the event that he or she testified to, the character of the witness for honesty or dishonesty, the existence of bias, self-interest, or prejudice, whether the testimony sounds reasonable in light of all the other evidence, and whether the witness has been consistent or inconsistent as they have told the story over the months.

6. You have heard evidence by one or more witnesses who testified as experts. The law allows experts to express opinions on subjects involving their special knowledge, training and experience. When evaluating an expert witness' opinions, you should consider the expert's qualifications, the bases and reasons for those opinions, and other matters affecting witness credibility.

7. As a judge, I have no opinion on the outcome of this case, and no special expertise as to who should win and who should lose. If anything I have said or done has been interpreted by you as my expression of favoritism towards one side or the other, or an expression by me of an opinion on the merits of the case, you are mistaken.

8. The law to be applied in this case is federal civil rights law, which provides a remedy for individuals who have been deprived of their constitutional rights under color of state law. Section 1983 of Title 42 of the United States Code states: "Every person who, under color of any statute, ordinance, regulation, custom or usage of any state or territory, or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

9. Section 1983 creates a legal cause of action in favor of persons who have been deprived of rights, privileges, and immunities secured to them by the United States Constitution and federal statutes. In enacting the statute, Congress intended to create a remedy for individuals whose constitutional rights were violated.

10. I shall shortly instruct you on the elements of Marianne Moore's claim and the city officials' qualified immunity defense. Marianne Moore has the burden of proving each and every element of her Section 1983 claim by a preponderance of the evidence. If you find that any one of the elements of her Section 1983 claim has not been proven by a preponderance of the evidence, you must return a verdict for Hunt, Riley, and the City.

11. The defendants Hunt, Riley, and the City of Bloomington have the burden of proving each element of their affirmative defenses. I shall shortly instruct you on the elements of those defenses. If you find that any one of them has not been proven by a preponderance of the evidence, you must disregard that particular defense.

12. To establish a claim under Section 1983, Marianne Moore must establish by a preponderance of the evidence, each of the following three elements:
(1) First, that the conduct complained of was committed by a person acting under color of state law;
(2) Second, that the conduct deprived Ms. Moore of rights, privileges, or immunities secured by the constitution or laws of the United States; and
(3) Third, that acts of Hunt or Riley were the proximate cause of the injuries and consequent damages sustained by the Ms. Moore..
I shall now examine each of these three elements in greater detail.

13. The first element of Ms. Moore's claim is that Mr. Hunt and Mr. Riley acted under color of state law. The phrase "under color of state law" is a shorthand reference to the words of Section 1983, which includes within its scope, action taken under color of any statute, ordinance, custom or usage of any state. The term "state" encompasses any political subdivision of a state, such as a county or city, and also any state agency or a county or city agency. Action "under color of state law" means action that is made possible only because the actor is clothed with the authority of the state. Section 1983 applies when someone misuses power that he or she possesses by virtue of a state law.

14. A person can act under color of state law even if the act violates state law. What is important is that the person is clothed with the authority of state law and acted in pursuance to that authority or by virtue of state law.

15. Whether Hunt, Riley, and the City committed the acts alleged is a question of fact for you to decide. I will instruct you in a moment on how to do that. However, if you find that they did commit those acts, I instruct you as follows:
a. With respect to James Riley, since he was the Deputy Mayor of the City of Bloomington at the time of the acts in question, he was acting under color of state law. In other words, with respect to him, the first statutory requirement is satisfied.
b. With respect to William Hunt, you will have to determine if he was acting under color of state law at the time of the acts in question. In order for an act to be under color of state law, the act must be of such nature and committed under such circumstances that it would not have occurred except for the fact that the defendant was clothed with the authority of the state -- That is to say, Mr. Hunt must have purported or pretended to be lawfully exercising his official power while in reality abusing it. The act of a state official in pursuit of his personal aims that is not accomplished by virtue of his state authority is not action under color of state law merely because the individual happens to be a state or local official.

16. The second element of Marianne Moore's claim is that she was deprived of a federal right by Hunt, Riley, or the City. In order for her to establish the second element she must show the following things by a preponderance of the evidence:
(1) First, that Hunt, Riley, and the City committed the acts alleged by Ms. Moore;
(2) Second, that those acts caused her to suffer the loss of a federal constitutional right; and
(3) Third, that in performing those acts, Hunt, and Riley, must have acted intentionally or recklessly.

17. An act is intentional if it is done knowingly -- that is, if it is done voluntarily and deliberately and not because of mistake, accident, negligence or other innocent reason. In determining whether Hunt or Riley acted with the requisite knowledge, you should remember that while witnesses may see and testify about what a person does or fails to do, there is no objective way of looking into a person's mind. Therefore, you have to depend on what was done and what the people involved said was on their minds and your own belief, disbelief, and common experience, with respect to those facts.

18. An act is reckless if it is done in conscious disregard of its known probable consequence. In determining whether Hunt or Riley acted with the requisite recklessness, you should remember that, while witnesses may see and testify to what a person does or fails to do, there is no way of looking into a person's mind. Therefore, you have to depend on what was done and what the people involved said was on their minds, and your belief, disbelief, and common experience, with respect to those facts.

19. The third element which Marianne Moore must prove is that the acts of Hunt or Riley were a proximate cause of the injuries sustained by her. Proximate cause means that there must be a sufficient causal connection between the act or omission of a city official and any injury or damage sustained by the plaintiff. An act or omission is a proximate cause if it was a substantial factor in bringing about or actually causing injury -- that is, if the injury or damage was a reasonably foreseeable consequence of the city official's acts or omissions. If an injury was a direct result or a reasonably foreseeable consequence of an act or omission, it was proximately caused by that act or omission. In other words, if a city official's act or omission had such an effect in producing the injury that reasonable persons would regard it as being a cause of the injury, then the act or omission is a proximate cause.

20. In order to recover damages for an injury, Marianne Moore must show by a preponderance of the evidence that such injury would not have occurred except for the conduct of Hunt or Riley. If you find that the defendants have proved, by a preponderance of the evidence, that the injury would have occurred anyway, regardless of their conduct, you must find that they did not proximately cause her injury.

21. A proximate cause need not always be the nearest cause either in time or space. In addition, there may be more than one proximate cause of an injury or damage. Many factors may operate at the same time, either independently or together, to cause an injury.

22. A defendant is not liable if plaintiff's injury was caused by a new or independent source which intervenes between the defendant's act or omission and the plaintiff's injury, and which produces a result which was not reasonably foreseeable by the defendant.

23. This case involves allegations that senior city officials are legally responsible for the acts and conduct of one of their employees. If you find that the conduct of the supervised person, Mr. Hunt, denied the plaintiff a constitutional right, you must separately consider whether one or more of the superior officials caused that conduct. If the superior official did cause the conduct, then he or she is liable under Section 1983 for the denial of Ms. Moore's constitutional right. Standards for assessing whether the supervisor proximately caused an injury are different from the standards for assessing the subordinate's liability. If the subordinate denied Ms. Moore a constitutional right, a supervisor is not automatically liable for such injury simply because of the supervisory relationship. But there are circumstances under which you may find that the supervisor has caused an injury and is thus liable. Two such circumstances exist.
(1) First, if you find that the superior official has done something affirmative to cause the injury to Ms. Moore -- for example, by directing the subordinate to do the acts in question -- you should find that the supervisor caused the injury.
(2) Second, if you find that the supervisor failed to carry out his or her duty to oversee and train the subordinate, knowing that this failure probably would cause a deprivation of Ms. Moore's rights by the subordinate, you should find also that the supervisor caused the injury.
A finding of either circumstance is enough to establish that the supervisor caused the injury.

24. To find that the supervising official did something affirmative to cause injury to Marianne Moore, you must find by a preponderance of the evidence that the supervisor was personally involved in the conduct that caused her injury. Personal involvement does not mean only that the superior officer, with his or her own hands, deprived Ms. Moore of her rights. That the law recognizes that the supervisor can act through others, setting in motion a series of acts by subordinates that the supervisor knows or reasonably should know would cause the subordinates to inflict the constitutional injury. Thus, Ms. Moore meets her burden of proof as to the personal involvement of the supervisor if she proves that the deprivation of her rights took place at the supervisor's direction, or with the supervisor's knowledge, acquiescence, or consent. The supervisor may give consent expressly or consent may be implied because of the supervisor's knowledge or acquiescence in the subordinate's unconstitutional conduct.

25. In the absence of personal involvement you may still find that the supervising official caused the injury to Marianne Moore if you find that he or she failed to carry out his or her duty to oversee or train the subordinate. To make such a finding, you must conclude by a preponderance of the evidence that the supervisor had a duty to oversee the subordinate, that he or she grossly disregarded that duty, and that a reasonable person in the supervisor's position would have known that this dereliction of duty probably would cause a depravation of rights.

26. The fact that an employee of a municipality deprived Ms. Moore of a federal right is not alone a sufficient basis for holding the City of Bloomington liable. Before you can hold the city liable, Ms. Moore must establish by a preponderance of the evidence that the action of the employee which deprived her of federal constitutional rights was the result of an official policy of the city or a governmental custom, even though such a custom has not received formal approval through the body's official decisionmaking channels. Thus, before you can hold the city liable, you must be convinced that the acts in question were officially sanctioned or ordered by the city.

27. There is no requirement that the action was taken pursuant to a long-standing or regularly applied policy of the city. A government frequently chooses a course of action tailored to a particular situation. Even if you determine that the particular policy was established for a single occasion, you may still find that it represented an official policy of the city, provided that a deliberate choice to follow a course of action was made from among various alternatives, by the official or officials responsible for establishing final policy with respect to the subject matter in question.

28. Defendants Hunt, Riley, and the City have claimed qualified immunity as a defense to some of the allegations. It is a defense if, at the time of the incident giving rise to this lawsuit, a city official neither knew nor should have known that their actions were contrary to federal law. The simple fact that the city official acted in good faith is not enough to bring him or her within the protection of this qualified immunity, nor is the fact that the city official was unaware of the federal law. The city official is entitled to qualified immunity only if he or she did not know they were violating federal law and also if a competent official could not have been expected to know that the conduct was in violation of federal law at the time.

29. In deciding what a competent official would have known about the legality of his or her conduct, you may consider the nature of the defendant's official duty, the character of his or her official position, the information which was known or not known to them, and the events which confronted them. You must ask yourself what a reasonable official in Hunt or Riley's situation would have believed about the legality of an individual defendant's conducts. You should not however consider what Hunt or Riley's subjective intent was even if you believe it was to harm Ms. Moore. You may also use your common sense. If you find that a reasonable official in Hunt or Riley's situation would believe their conduct to be lawful, then this element will be satisfied.

30. Defendants have the burden of proving that they neither knew nor should have known that their actions violated federal law. If any one of them convinces you by a preponderance of the evidence that he or she neither knew nor should have known that their actions violated the constitution, then you must return a verdict for that individual, even though you may have previously found that the he or she in fact violated Ms. Moore's rights.

31. You may find that some defendants are entitled to qualified immunity and others are not.

32. I will now instruct you on how to award damages. Just because I am instructing you how to do so, does not mean that I have any opinion on whether Hunt, Riley, and the City should in fact be held liable. If you return a verdict for Marianne Moore, then you must know how to award damages. You should award her such a sum of money as you believe will fairly and justly compensate her for any and all injuries you believe she actually sustained as a proximate cause of the actions of city officials. You shall award damages only for those injuries which you find Ms. Moore has proven by a preponderance of the evidence. Moreover, you shall award actual damages only for those injuries which you find she has proven by a preponderance of the evidence to have been the direct result of conduct by Hunt, Riley, and the City in violation of Section 1983. That is, you may not simply award damages for any injury suffered by Ms. Moore. You must award damages only that are a direct result of conduct by Hunt, Riley, and the City which violated Ms. Moore's constitutional rights under color of law. Damages must be based on proof, as understood by your common sense. They may not be based on speculation or sympathy.

33. Among the damages you may award Marianne Moore is something called front pay. If she proves that she was wrongfully discharged from her job, the law provides for two alternative remedies. One remedy is simply that she can be given her job back. However, if Ms. Moore proves to you under the facts of this case that because of the small size of the office, or because of bad feelings between Ms. Moore and one or more city officials, or for other legitimate reason, it would not be practical to reinstate her to her job, she can instead receive compensation for the number of years you think she reasonably would have worked at the job in the future, just as you would compensate her for back pay.

34. Marianne Moore has asked for punitive damages to be awarded. Punitive damages are available only if Mr. Hunt, or Mr. Riley acted maliciously and with callous indifference toward her constitutional rights. The law permits you to award punitive damages in order to punish a wrong doer for some extraordinary conduct and to serve as an example or warning to others not to engage in such conduct. You may award punitive damages in any sum that you agree is proper. However, punitive damages should bear a reasonable relation to the amount awarded for economic loss and emotional distress.

35. If you find that more than one defendant is liable, you may apportion the damages among them, as you see fit, in accordance to your assessment of their relevant culpability.

36. You are now ready to begin your deliberations. I recommend that you begin by choosing a foreperson to guide you in your discussions. As soon as all of you have agreed to the verdict, the amount of money to be awarded, if any, and filled out the verdict form, you should return to the courtroom, and the foreperson will be asked to read your decision.