The opinion of the court was delivered by: Judge Wiley Y. Daniel
THIS MATTER is before the Court on several post-trial motions. Specifically, on November 16, 2005, Defendant filed a Motion Pursuant to Fed. R. Civ. P. 50(b) for Judgment N.O.V. or, in the Alternative, for Relief from Judgment or a New Trial Pursuant to Fed. R. Civ. P. 59. A response to this motion was filed December 6, 2006, and a reply was filed January 17, 2006. Also filed were motions for attorneys fees by Plaintiff and Plaintiff's Motion for Court Order to Assess Costs of Court's Audio Expert.
I address these motions below.
Defendant Kevin P. Turner ["Turner"] conducted a traffic stop of Plaintiff John S. Wilder ["Wilder"] on November 30, 2001. Defendant Turner alleged that he observed indicators of alcohol use and arrested Wilder for suspicion of driving under the influence of alcohol and illegal possession of a firearm while intoxicated. Plaintiff Wilder sued Turner under 42 U.S.C. § 1983, claiming that he was arrested and charged with driving under the influence of alcohol and use of a prohibited weapon without probable cause in violation of his rights under the Fourth Amendment to the United States.
A two (2) day trial to a jury was held October 26 and 27, 2005. At the close of trial on October 27, 2005, the Court denied Defendant's oral motion for a directed verdict. On October 28, 2005, the jury entered a verdict in favor of Plaintiff. The jury awarded $350,000 in non-economic losses, $150,000 in economic losses, and $500,000 in punitive damages.
A. Turner's Motion Pursuant to Fed.R.Civ.P. 50(b) for Judgment N.O.V. or, in the Alternative, for Relief from Judgment or a New Trial Pursuant to Fed.R.Civ.P. 59
Turner's motion first asserts that the Court should enter judgment in his favor under Rule 50(b), notwithstanding the verdict of the jury. In deciding a motion for judgment as a matter of law under Rule 50, "[a]ll reasonable inferences are drawn in favor of the nonmoving party and th[e] court does 'not make credibility determinations or weigh the evidence.'"Loughridge v. Chiles Power Supply Co., Inc., 431 F.3d 1268, 1280 (10th Cir. 2005). "Judgment as a matter of law is appropriate 'only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position.'" Id. (quoting Finley v. United States, 82 F.3d 966, 968 (10th Cir. 1996)).
Turner argues as to the finding on liability under § 1983 that it is undisputed "that at least seven indicators of alcohol intoxication were present and observed by Corporal Turner." Def.'s Mot. at 1. Turner further asserts that even if he should have realized that other causes may have been present for the indicators, "his observation of them in conjunction with the odor of alcohol and the admission of drinking served to confirm a reasonable belief that Mr. Wilder was committing the offense of driving under the influence of alcohol or while his ability was impaired by alcohol." Id. at 5 (emphasis in original). Accordingly, he asserts that "the evidence leads to no other conclusion than that Corporal Turner had probable cause to arrest and charge Mr. Wilder." Id.
I reject Turner's argument. He appears to incorrectly assume that because there was evidence that seven indicators of alcohol intoxication were present, this automatically means that there was probable cause to arrest. As the jury was properly instructed, however, a finding of probable cause must be based on the totality of the circumstances. See People v. Mendez, 948 P.2d 105, 108 (Colo. App. 1997), aff'd, 986 P.2d 275 (Colo. 1999), cert. denied, 529 U.S. 1070 (2000). This determination is not tied to the presence of a certain number of indicators of alcohol intoxication, nor has Turner cited any case law that the indicators that were present give rise to probable cause as a matter of law. Here, while Turner testified to the presence of certain indicators that he believed showed alcohol intoxication, there was also evidence that Turner decided to improperly arrest Wilder because he refused to take voluntary roadside sobriety tests. There was also evidence from Wilder that many of the indicators Turner observed were due to other causes*fn1, and Wilder testified that no reasonable person in Turner's position could have believed that he was intoxicated.
Importantly, a tape recording was presented at trial of the encounter between Turner and Wilder which allowed the jury to assess the credibility of many of the alleged indicators of alcohol intoxication. For example, the taped encounter enabled the jury to assess the scope of Wilder's admissions to Turner, whether Wilder's speech was slow and deliberate, whether Wilder was argumentative, whether Wilder sounded intoxicated, and the general tone of the overall encounter between Turner and Wilder. The jury may well have decided based upon such tape that they did not find Turner's account of the encounter to be credible. See United Intern. Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1227 (10th Cir. 2000) ("[t]he jury has the 'exclusive function of appraising credibility, determining the weight to be given to the testimony, drawing inferences from the facts established, resolving conflicts in the evidence, and reaching ultimate conclusions of fact'") (quotation omitted), aff'd, 532 U.S. 588 (2001).
In short, I find that the evidence did not point only one way in favor of Turner. While there was some evidence that could have led the jury to find probable cause, this evidence was not sufficient to mean that Turner had probable cause to arrest and charge Wilder as a matter or law. Further, the evidence is susceptible to reasonable inferences which support Plaintiff's position that there was not probable cause to arrest him. Accordingly, I deny Turner's motion for judgment notwithstanding the verdict on this issue.
Turner also argues in his reply that judgment should be entered in his favor notwithstanding the verdict based on the defense of qualified immunity. Turner asserts that "his 'reasonable but mistaken conclusion that probable cause was present' could not be controverted" based on his observation of the seven indicators of alcohol intoxication. Def.'s Mot. at 3. I reject Turner's argument for the same reasons discussed above in connection with the finding of probable cause. There was evidence from which the jury could infer that Turner arrested Wilder for a reason he knew was unlawful, i.e., because Wilder refused to participate in voluntary roadside sobriety tests. If this evidence was accepted by the jury, the jury could have then reasonably inferred that Turner was not entitled to ...