Webb Jury Instructions

3:19-cv-02031-CMC Date Filed 01/12/23 Entry Number 184 Page 1 of 24
1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF SOUTH CAROLINA
3 COLUMBIA DIVISION
4
5 Sheila Webb, ) C/A 3:19-2031-CMC
6 )
7 Plaintiff, )
8 v. )
9 )
10 Leon Lott, in his capacity as Sheriff of the )
11 Richland County Sheriff’s Department, )
12 and Cameron Duecker, )
13 )
14 Defendants. )
15 ______________________________________ )
16
17 JURY INSTRUCTIONS
18
19 Members of the jury, now that you have heard all the evidence and the arguments
20 of the Plaintiff’s and Defendants’ lawyers, it is my duty to instruct you on the law that
21 applies to this case. These instructions will be in three parts: first, the instructions on
22 general rules that define and control the jury’s duties; second, the instructions that state the
23 rules of law you must apply, that is, what Plaintiff must prove to make her case; and third,
24 some rules for your deliberations.
25 It is your duty to find the facts from all the evidence in the case. To those facts you
26 must apply the law as I give it to you. You are bound to accept the rules of law as I give
27 them to you whether you agree with them or not. And you must not be influenced by any
28 personal likes or dislikes, opinions, prejudices or sympathy. That means that you must
29 decide the case solely on the evidence before you and according to the law. You will recall
30 that you took an oath promising to do so at the beginning of the case.

1
1 In following my instructions, you must follow all of them and not single out some
2 and ignore others; they are all equally important. And you must not read into these
3 instructions or into anything I may have said or done any suggestion as to what verdict you
4 should return - that is a matter entirely for you to decide.
5 Burden of Proof
6 At the beginning of the case, I told you that Plaintiff, Sheila Webb, has the burden
7 of proving her case by a preponderance of the evidence. That means that Plaintiff has to
8 produce evidence which, considered in the light of all the facts, leads you to believe that
9 what Plaintiff claims is more likely true than not. To put it differently, if you were to put
10 Plaintiff’s and Defendants’ evidence on opposite sides of a set of scales, Plaintiff would
11 have to make the scales tip slightly in her favor. If Plaintiff fails to meet this burden, the
12 verdict must be for Defendants.
13 Those of you who have sat on criminal cases will have heard of proof beyond a
14 reasonable doubt. That is a stricter standard, and requires more proof than a preponderance
15 of evidence. The reasonable doubt standard does not apply to a civil case and you should
16 therefore put it out of your mind.
17 Evidence
18 The evidence from which you are to decide what the facts are consists of:
19 1. the sworn testimony of witnesses, both on direct and cross-examination,
20 regardless of who called the witness;
21 2. the exhibits that have been received into evidence; and

2
1 3. any facts to which the parties have agreed or stipulated.
2 What is Not Evidence
3 Certain things are not evidence, and you may not consider them in deciding what
4 the facts are. I will list them for you:
5 1. Arguments and statements by lawyers are not evidence. What has been said
6 in opening statements, closing arguments and at other times is intended to
7 help you interpret the evidence, but it is not evidence. If the facts as you
8 remember them differ from the way they have been characterized, your
9 memory of them controls.
10 2. Questions and objections are not evidence. Attorneys have a duty to object
11 when they believe a question is improper under the rules of evidence. You
12 should not be influenced by any of the objections or by my ruling on any of
13 them.
14 3. Testimony that has been excluded or stricken, or that you have been
15 instructed to disregard, is not evidence and must not be considered. In
16 addition, if testimony or exhibits have been received only for a limited
17 purpose, you must follow the limiting instructions I have given.
18 4. Anything you may have seen or heard when the court was not in session is
19 not evidence. You are to decide the case solely on the evidence received at
20 the trial.
3
1 Direct and Circumstantial Evidence
2 There are two kinds of evidence: direct and circumstantial. Direct evidence is direct
3 proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is indirect
4 evidence, that is, proof of a chain of facts from which you could find that another fact
5 exists, even though it has not been proved directly. You are entitled to consider both kinds
6 of evidence. The law permits you to give equal weight to both, but it is for you to decide
7 how much weight to give to any evidence.
8 Let me give you an example of circumstantial evidence. If you put a mouse in a
9 paper bag and left it for a while, then came back and found a small hole in the bag and no
10 mouse, you would have circumstantial evidence that the mouse chewed his way out of the
11 bag. On the other hand, if you had a cat, and a big hole in the bag, and no mouse, you
12 might reach a different conclusion. In either case, you would consider all of the
13 circumstantial evidence in light of reason, common sense, and your own experience to
14 decide what facts were most likely true.
15 It is for you to decide whether a fact has been proved by circumstantial evidence.
16 In making that decision, you must consider all the evidence in the light of reason, common
17 sense, and experience.
18 Credibility of Witnesses
19 In deciding what the facts are, you must consider all of the evidence. In doing this,
20 you must decide which testimony to believe and which testimony not to believe. You are
21 the sole judges of the credibility, or believability, of each witness. You must decide for
4
1 yourselves whether to believe the testimony of any witness. You may believe all or any
2 part or nothing of what a witness said while on the stand. In determining whether to believe
3 any witness, you should apply the same tests of truthfulness which you apply in your own
4 everyday affairs. In doing this, you may take into account a number of factors including
5 the following
6 1. Was the witness able to see, or hear, or know the things about which that
7 witness testified?
8 2. How well was the witness able to recall and describe those things?
9 3. What was the witness’s manner while testifying?
10 4. Did the witness have an interest in the outcome of this case or any bias or
11 prejudice concerning any party or any matter involved in the case?
12 5. How reasonable was the witness’s testimony considered in light of all the
13 evidence in the case?
14 6. Was the witness’s testimony contradicted by what that witness has said or
15 done at another time, or by the testimony of other witnesses, or by other
16 evidence?
17 In deciding whether or not to believe a witness, keep in mind that people sometimes
18 forget things. You need to consider therefore whether a contradiction by a witness is an
19 innocent lapse of memory or an intentional falsehood, and that may depend on whether it
20 has to do with an important fact or with only a small detail.
5
1 These are some of the factors you may consider in deciding whether to believe
2 testimony.
3 The weight of the evidence presented by each side does not depend on the number
4 of witnesses testifying on one side or the other. You must consider all the evidence in the
5 case, and you may decide that the testimony of a smaller number of witnesses on one side
6 has greater weight than that of a larger number on the other.
7 All of these are matters for you to consider in finding the facts.
8 Law Enforcement Testimony
9 In considering the testimony of a witness who is a law enforcement officer or agent
10 of the government, you may not give more weight to his or her testimony than you give to
11 the testimony of other witnesses for the mere reason that the witness is a law enforcement
12 officer or agent of the government.
13 Notes
14 Some of you have taken notes during the trial. Remember that the notes are for your
15 own personal use. They are not to be given or read to anyone else and they are not to be
16 used in place of your memory.
17 Verdict
18 Your verdict must be based solely on the evidence and the law as I give it to you in
19 these instructions. However, nothing that I have said or done is intended to suggest what
20 your verdict should be – that is entirely for you to decide.
21
6
1 Introduction
2 Plaintiff contends Richland County Sheriff’s Deputy Cameron Duecker
3 (“Duecker”) violated her federal constitutional rights by entering her home without
4 authorization, illegally seizing her, and using excessive force against her. Plaintiff has sued
5 Duecker for unreasonable seizure and excessive force under the Fourth Amendment. In
6 addition, Plaintiff has sued Sheriff Leon Lott in his official capacity as Sheriff of Richland
7 County (hereinafter referred to as “RCSD”) for state law claims of gross negligence;
8 assault; battery; false imprisonment; and negligent retention and supervision.
9 Rules of Law
10 I will now instruct you on the rules of law that apply in this case.
11 Plaintiff’s Section 1983 claim
12 Plaintiff’s claim against Duecker is called a Section 1983 claim. Plaintiff seeks
13 damages for the deprivation, under color of state law, of rights secured to her under the
14 Constitution and laws of the United States.
15 Specifically, Plaintiff’s § 1983 claim alleges that Duecker, while acting under color
16 of the authority of the State of South Carolina, deprived her of certain rights and privileges
17 secured to her by the Constitution and laws of the United States, namely, the right to be
18 secure in her person against unreasonable seizure and her right to be free from the use of
19 excessive force, rights which in this circumstance are protected by the Fourth Amendment.
7
1 42 U.S.C. § 1983, a federal statute also known as the civil rights statute, gives people
2 the right to bring a lawsuit when they believe that they have been deprived of their
3 constitutional rights or that their constitutional rights have been violated. The statute states:
4 Every person who, under color of any statute, ordinance,

5 regulation, custom, or usage, or any state or territory, subjects
6 or causes to be subjected, any citizen of the United States or
7 other person within the jurisdiction thereof to the deprivation
8 of any rights, privileges, or immunities secured by the
9 Constitution and laws, shall be liable to the party injured in an
10 action at law, suit in equity, or other proceedings, for redress.
11 The central purpose of the Section 1983 statute is to give a remedy to persons
12 deprived of constitutional rights, privileges, and immunities by an official’s abuse of his
13 position. The United States Constitution places substantial limitations upon state action
14 and the cause of action provided by Section 1983 is fundamentally one for misuse of power,
15 possessed by virtue of state law and made possible only because the wrongdoer is clothed
16 with the authority of state law.
17 In order to recover damages under the Section 1983 statute against Duecker,
18 Plaintiff must prove by a preponderance of the evidence the following elements:
19 1. First, that Duecker was acting under color of law;
20 2. Second, that Duecker deprived Plaintiff of a right, privilege, or immunity
21 secured by the Constitution; and
22 3. Third, that Plaintiff sustained damages as a proximate result of being
23 deprived of a constitutional right.
24
8
1 1. The First Element: “Under Color Of”
2 As to the first element, I instruct you that, as a matter of law, Duecker was acting
3 under color of state law. Therefore, you need not consider the first element.
4 2. The Second Element: Deprivation of Constitutional Right
5 The second element presents this question: Was Plaintiff deprived of a right
6 guaranteed by the United States Constitution? The constitutional rights alleged to have been
7 violated are the rights to be secure against unreasonable seizure, which includes the right to
8 be free from the use of excessive force.
9 A. Unreasonable Seizure
10 In order to find that Plaintiff’s constitutional right to be secure against unreasonable
11 seizure was violated, you must find that Plaintiff was seized and the seizure of Plaintiff was
12 unreasonable. Under the Fourth Amendment, a police officer cannot go into an individual’s
13 home or arrest a person in their home unless he has a warrant, has consent, or there exists
14 probable cause accompanied by exigent circumstances. An arrest made inside an
15 individual’s home without a warrant, consent, or probable cause accompanied by exigent
16 circumstances is presumptively unreasonable.
17 Consent may be either express or implied. Express consent is direct and unequivocal,
18 requiring no inference or implication. Implied consent is manifested by signs, actions, or
19 facts, or by inaction or silence, which raise a presumption that consent has been given.
20 Probable cause can be explained as facts and circumstances within an officer’s
21 knowledge that would convince a prudent officer that the person to be arrested has
9
1 committed an offense. Exigent circumstances means circumstances that are of such urgency
2 as to justify a warrantless entry or seizure when a warrant would ordinarily be required.
3 The reasonableness inquiry is an objective one. The question is whether the officer’s
4 actions were objectively reasonable in the light of the facts and circumstances confronting
5 him, without regard to his underlying intent or motivation.
6 Subjective intent of the officer is not controlling. Evil intent will not make an objectively
7 reasonable seizure unreasonable, nor will good intent make an objectively unreasonable
8 seizure constitutional. The attitude and motivation of the officer being judged is not the
9 determining factor.
10 The facts should be judged from the perspective of a reasonable officer on the scene,
11 rather than with the benefit of hindsight and reflection.
12 I instruct you that the evidence is undisputed that there was no consent requested or
13 given, no warrant, and no exigent circumstances.
14 B. Use of Excessive Force
15 Under federal law, an individual can bring a lawsuit against a law enforcement
16 officer if the law enforcement officer uses force, during even a lawful arrest, if that force is
17 unreasonable under the totality of the circumstances. Plaintiff has also brought a claim
18 against Duecker for using more force than necessary on Plaintiff by tasing Plaintiff during
19 the seizure unreasonably.
20 Determining whether the force used to effect a particular seizure is reasonable under
21 the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion
10
1 on the individual’s Fourth Amendment interests against the countervailing governmental
2 interests at stake.
3 You should keep in mind that law enforcement officers are often forced to make
4 split-second judgments about the amount of force that is necessary in a particular situation
5 in circumstances that are tense, uncertain, and rapidly changing. An officer’s right to
6 preserve order necessarily gives the officer the right to use some physical coercion or the
7 threat of physical coercion to carry out his duties.
8 What amounts to reasonable force on the part of an officer usually depends on the
9 facts in each particular case. The reasonableness of the force used must be judged in the
10 light of the circumstances as they appeared to the officer at the time he acted and the measure
11 of reasonableness of the force is generally considered to be that which an ordinarily
12 reasonable officer, with the knowledge and in the situation of the officer, would have
13 deemed necessary under the circumstances.
14 I charge you that in determining objective reasonableness, you should consider: (1)
15 the severity of the circumstances; (2) whether Plaintiff posed an immediate threat to the
16 safety of the officer or others, (3) the type of weapon used to arrest Plaintiff; and (4) the
17 types of injuries Plaintiff suffered. You may consider the lack of grounds for a lawful arrest
18 in determining the reasonableness of the force used. When considering any immediate
19 danger that Plaintiff posed, keep in mind that noncompliance is not considered an immediate
20 threat to an officer. At bottom, “physical resistance” is not synonymous with “risk of
21 immediate danger.” A police officer may only use serious injurious force, like a taser, when
11
1 an objectively reasonable officer would conclude that the circumstances present a risk of
2 immediate danger that could be mitigated by the use of force. Taser use can constitute
3 excessive force when used in response to non-violent resistance.
4 The officer has discretion, within reasonable limits, to determine the amount of force
5 which the circumstances require. The mere fact that the evidence in the case may establish
6 some physical contact with Plaintiff during the course of an arrest which resulted in personal
7 injury to the Plaintiff is not proof that the officer acted beyond his lawful authority under
8 law.
9 3. The Third Element: Proximate Cause
10 If you decide that Duecker violated Plaintiff’s constitutional rights, then you must
11 consider the third element, that is, whether the injuries complained of by Plaintiff were
12 proximately caused by a constitutional violation.
13 Proximate cause is a legal term that means the efficient, or direct, cause, or the thing
14 which brings about the damage complained of.
15 Limiting Instruction
16 You have heard evidence involving an earlier incident in which Duecker arrested
17 Darius Gaskins. This evidence is only applicable to the claim of negligent retention and
18 supervision against RCSD, addressed below, and should not be considered while
19 deliberating on Plaintiff’s § 1983 claim against Duecker or against RCSD.
20
21
12
1 Plaintiff’s Claims against RCSD

2 under the South Carolina Tort Claims Act
3 Under South Carolina state law, an individual can bring a lawsuit against a law
4 enforcement agency in the name of the head of the agency for harm caused by the agency’s
5 employees who are acting within the scope of their official duties pursuant to the South
6 Carolina Tort Claims Act (“SCTCA”). In this action, Plaintiff is suing Defendant RCSD
7 for harm caused by Duecker. Plaintiff alleges four claims against RCSD for the actions of
8 Duecker: gross negligence; assault; battery; and false imprisonment. Plaintiff also asserts
9 RCSD is directly liable for its own actions in negligent supervision and retention as to
10 Duecker.
11 Gross Negligence
12 Plaintiff alleges RCSD, by and through its employee, Duecker, was grossly negligent
13 when Duecker harmed Plaintiff by entering her home without consent, a warrant, and
14 without probable cause accompanied by exigent circumstances, by arresting her, and by
15 imprisoning her. Gross negligence is the intentional conscious failure to do something
16 which it is incumbent upon one to do or the doing of a thing intentionally that one ought not
17 to do. It is the failure to exercise even slight care. Gross negligence has also been defined
18 as a relative term, and means the absence of care that is necessary under the circumstances.
19 To prove RCSD, by and through its employee Duecker, was grossly negligent,
20 Plaintiff must show:
21 1. RCSD owed Plaintiff a duty of care;

22 2. RCSD, by and through its employee, Duecker, failed in its duty of care to
13
1 Plaintiff by acting unreasonably or failing to do an action a reasonable

2 officer would have done;
3 3. RCSD, by and through its employee, Duecker, was the cause of Plaintiff’s
4 harm; and
5 4. Plaintiff suffered damage from the harm.
6 Assault
7 Plaintiff asserts RCSD is liable for an assault on her by Duecker. To prove assault,
8 Plaintiff must show RCSD’s employee, Duecker, unlawfully attempted or offered to hurt or
9 unlawfully touch Plaintiff with force or violence.
10 Battery
11 Plaintiff is suing RCSD, by and through its employee, Duecker, for battering Plaintiff
12 when Duecker seized and tased Plaintiff. To prove battery, Plaintiff must show that Duecker
13 unlawfully committed forcible contact upon Plaintiff.
14 False Imprisonment
15 Plaintiff is suing RCSD, by and through its employee, Duecker, for false
16 imprisonment, or the deprivation of one’s liberty without justification. To prove a claim for
17 false imprisonment, Plaintiff must prove that:
18 1. Duecker restrained Plaintiff;
19 2. Duecker meant to restrain Plaintiff; and
20 3. The restraint was unlawful.
14
1 The fundamental issue in determining the lawfulness of restraint in this case is whether there
2 was a warrant, or probable cause accompanied by an exigent circumstance to arrest Plaintiff
3 without a warrant. In the absence of either of these, the restraint is unlawful.
4 RCSD’s Affirmative Defenses
5 Governmental entities are not responsible for an employee’s wrongs for gross
6 negligence, assault, battery and/or false imprisonment when the employee’s conduct is
7 outside the scope of his official duties, constitutes actual malice, or intent to harm. RCSD
8 has the burden of proving, by a preponderance of the evidence, that Duecker was not acting
9 within the scope of his official duties or was acting with actual malice, or intent to harm,
10 when he committed the actions alleged to be gross negligence, assault, battery, and/or false
11 imprisonment. If RCSD so proves, it is not liable for these claims.
12 An employee is acting within the scope of their official duties when he is:
13 1. Acting in and about the official business of a governmental entity; and
14 2. Performing official duties.
15 If Duecker’s action was done to further or accomplish RCSD’s business or is
16 necessary to accomplish RCSD’s business, then he can be considered as “acting in and about
17 the official business of a governmental entity.” For example, assault by a sheriff’s deputy
18 in the performance of his duties is among the acts for which a sheriff may be liable.
19 Moreover, when a sheriff's deputy uses force greater than is reasonably necessary under the
20 circumstances, the agency may be liable for battery.
15
1 However, if he was acting for his own personal motivation, his conduct is not within the
2 scope of such duties. The law does not protect an employee who uses his authority for
3 nothing more than to personally retaliate against someone. You are required to do your own
4 analysis of whether Duecker was acting in his own personal interest or the interest of RCSD
5 when he committed the alleged acts against Plaintiff.
6 RCSD is not responsible for Duecker’s actions if he acted with actual malice. Actual
7 malice means Duecker acted with ill will toward Plaintiff, acted recklessly or wantonly,
8 meaning with conscious indifference toward Plaintiff’s rights, or acted to causelessly and
9 wantonly injure Plaintiff. RCSD has the burden of proving, by a preponderance of the
10 evidence, that Duecker acted with actual malice.
11 RCSD is also not responsible for Duecker’s actions if he intended to harm Plaintiff.
12 If you find Duecker intended to harm Plaintiff, then RCSD is not responsible for Duecker’s
13 actions. RCSD has the burden of proving, by a preponderance of the evidence, that Duecker
14 acted with the intent to harm Plaintiff.
15 Negligent Retention and Supervision
16 Plaintiff has alleged that RCSD, by and through its employees, was negligent in
17 supervising and retaining Duecker. To prevail on this claim, Plaintiff must prove, by a
18 preponderance of the evidence, that RCSD owed a duty of due care in regard to the
19 supervision or retention of Duecker, that RCSD breached this duty, and that RCSD’s breach
20 of duty was a proximate cause of her injuries.
16
1 Where RCSD, by and through its employees, knew or should have known that its
2 employment of Duecker created an undue risk of harm to the public, Plaintiff may claim
3 that RCSD was itself negligent in supervising Duecker or that persons supervising Duecker
4 were negligent in entrusting him with a tool that created an unreasonable risk of harm to the
5 public.
6 Plaintiff must prove:
7 1. RCSD employee, Duecker, was on the job and was using tools or equipment
8 provided to him to conduct his duties;
9 2. RCSD, by and through its employees, had the ability to control Duecker;
10 3. RCSD, by and through its employees, knew or should have known of the need and
11 opportunity to exercise control over Duecker; and
12 4. As a result of RCSD’s failure to properly supervise Duecker, Plaintiff suffered
13 harm.
14 Similarly, in order to prove RCSD negligently retained Duecker, Plaintiff must prove
15 that the harm she suffered resulted from RCSD’s knowledge of Duecker’s habit of prior
16 wrongdoing, or that RCSD should have known of Duecker’s prior habit of wrongdoing, and
17 despite the foreseeability of harm, RCSD failed to terminate Duecker before he caused
18 Plaintiff harm.
19 A single isolated incident of prior misconduct, of which the employer knew or should
20 have known, may support a claim for negligent retention provided the prior misconduct has
21 a sufficient nexus to the ultimate harm. Plaintiff must prove, by a preponderance of the
17
1 evidence, that the earlier misconduct was substantially similar to the later misconduct, and
2 that RCSD was on notice of the earlier misconduct and its substantial similarity to the later
3 misconduct.
4 Occurrences
5 If you find Plaintiff has proved more than one of her allegations against Defendant
6 RCSD, you must determine whether the actions alleged by Ms. Webb were separate
7 occurrences. “Occurrence” means an unfolding sequence of events which proximately flow
8 from a single act of negligence. Plaintiff has the burden of proving whether each act was
9 separate and independent in order for you to find more than one occurrence.
10 Damages
11 I will now instruct you on the considerations to be made when determining damages
12 for Plaintiff’s claims, if you determine Plaintiff is entitled to damages. You must consider
13 whether to award Plaintiff two types of damages–actual and/or nominal.
14 I will now give you some guidance on how to assess these types of damages. First,
15 I will give you some general guidelines.
16 Plaintiff need not prove the amount of her damages to a mathematical certainty. The
17 fact that the exact amount of damages may be difficult to ascertain, or that they cannot be
18 measured by a pecuniary standard, is no reason for denying an award of damages.
19 Although damages need not be established to a mathematical certainty, they must be
20 reasonable. You are not to award speculative damages or damages for any injury or
21 condition from which Plaintiff may have suffered unless it has been established by a
18
1 preponderance of the evidence that such injury was proximately caused by a defendant’s
2 conduct. Accordingly, if you should find that Plaintiff is entitled to a verdict, you may award
3 her only such an amount of actual damages as will reasonably compensate her for such
4 injuries as she has sustained as a direct and proximate result of a defendant’s wrong.
5 The amount of actual damages is that amount of money that will put the injured
6 person in as near the same position as she would have been in had she not been injured. In
7 other words, damages means the amount of money that will reasonably and fairly
8 compensate Plaintiff.
9 Damages are intended to compensate a party for that which she has suffered or lost
10 as a result of an omission or act of another. If you should find that Plaintiff is entitled to a
11 verdict, then in arriving at the amount of your award, you should consider such pain,
12 suffering, physical injury, and mental anguish, as you find she has suffered, as well as the
13 nature and extent of her injuries as a direct and proximate result of a defendant’s conduct.
14 You are not to award speculative damages, nor damages based on conjecture or
15 guesswork. Nor are you to award damages for any injury or condition from which Plaintiff
16 may have suffered unless it has been established by a preponderance of the evidence that
17 this injury was proximately caused by a defendant’s conduct.
18 In this situation, you may consider the amount that would be necessary to make the
19 injured person whole as respects any physical and mental pain and suffering endured by the
20 injured party, and humiliation, embarrassment, or mortification endured by the injured
21 party.
19
1 As used in these instructions, pain means acute discomfort of mind or body,
2 including mental or bodily suffering or distress, and suffering means the undergoing or
3 enduring of pain or distress. Pain and suffering also includes the loss of ability to enjoy life.
4 Mental anguish means grief, anguish, anxiety, worry, shock, humiliation and
5 indignity, as well as the psychological components of physical pain and suffering.
6 Pain and suffering have no market price. They are not capable of exact measurement,
7 and there is no fixed rule or standard whereby damages for them can be measured.
8 Therefore, the amount of damages to be awarded for pain and suffering must be left to the
9 judgment of you, the jury.
10 The injured party may recover for mental anguish brought about by bodily injury and
11 suffering. If you find that Plaintiff is entitled to recover damages, you may consider as an
12 element of those damages such pain and suffering and mental anguish as you find to a
13 reasonable certainty will occur in the future as a result of the injuries.
14 Based on current statistical life expectancy tables, the average life expectancy of a
15 62-year-old woman in South Carolina is 22.47 additional years.
16 If you find that Plaintiff is entitled to a verdict in accordance with these instructions,
17 but do not find that she has proved to your satisfaction by a preponderance of the evidence
18 any actual damages, then you may return a verdict for Plaintiff in some nominal sum, such
19 as one dollar. An award of nominal damages under Section 1983 is the appropriate way to
20 vindicate constitutional rights whose deprivation has not caused actual injury.
20
1 If you should find that Plaintiff is entitled to a verdict, then, in arriving at the amount
2 of your award, you should also consider that any award you might make will not be subject
3 to either federal or state personal income taxation. The law provides that any award of
4 actual damages for personal injuries will not be subject to personal income taxation. The
5 interest, if any there be, derived from such an award, however, will be subject to personal
6 income taxation.
7 The fact that I have instructed you on the proper measure of damages is not an
8 indication of any view of mine as to whether you should find damages for Plaintiff. That
9 decision is entirely up to you, based on the guidelines that I have given you.
10 Duty To Deliberate
11 When you retire to the jury room, you should first elect one from among you to serve
12 as your foreperson. The foreperson you select will preside over the deliberations and speak
13 for the jury here in court.
14 After electing your foreperson, you should discuss the case with your fellow jurors
15 to reach agreement if you can do so. Your verdict must be unanimous.
16 Each of you must decide the case for yourself, but you should do so only after you
17 have considered all the evidence, discussed it fully with the other jurors, and listened to the
18 views of your fellow jurors.
19 Do not be afraid to change your opinion if the discussion persuades you that you
20 should. But do not come to a decision simply because other jurors think it is right.
21
1 It is important that you attempt to reach a unanimous verdict but, of course, only if
2 each of you can do so after having made your own conscientious decision. Do not change
3 an honest belief about the weight and effect of the evidence simply to reach a verdict.
4 Remember at all times that you are not partisans. You are judges - judges of the
5 facts. Your sole interest is to seek the truth from the evidence in the case.
6 Outside Communication or Research
7 I remind you that during your deliberations, you must not communicate with or
8 provide any information to anyone by any means about this case. You may not use any
9 electronic device or media, such as a telephone, cell phone, smart phone, iPhone,
10 Blackberry, or computer; the internet, any internet device, or any text or instant messaging
11 service; or any internet chat room, blog, or website such as Facebook, MySpace, LinkedIn,
12 YouTube, or Twitter, to send or receive any information about this case or to conduct any
13 research about this case until I accept your verdict. You may not use any reference material,
14 including a dictionary, encyclopedia, Bible, or internet resource or search engine such as
15 Wikipedia or Google for any purpose related to this case until your verdict has been
16 returned. If you learn that any juror has violated this instruction, you are directed to report
17 it to the court immediately.
18 Communicating with the Court
19 If it becomes necessary during your deliberations to communicate with me, you may
20 send a note through the court security officer, signed by your foreperson or by one or more
21 members of the jury. No member of the jury should ever attempt to communicate with me
22
1 except by a signed writing; and I will communicate with any member of the jury on anything
2 concerning the case only in writing, or orally here in open court. Remember that you are
3 not to tell anyone - including me - how the jury stands, numerically or otherwise, until after
4 you have reached a unanimous verdict or have been discharged.
5 Return of Verdict
6 After you have reached a unanimous agreement on a verdict, your foreperson will
7 fill in the form that has been given to you, sign and date it and advise the court security
8 officer outside your door that you are ready to return to the courtroom.
23
24

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3:19-cv-02031-CMC Date Filed 01/12/23 Entry Number 184 Page 1 of 24

1 IN THE UNITED STATES DISTRICT COURT

24 some rules for your deliberations.

30 that you took an oath promising to do so at the beginning of the case.

4 should return - that is a matter entirely for you to decide.

12 verdict must be for Defendants.

16 therefore put it out of your mind.

19 1. the sworn testimony of witnesses, both on direct and cross-examination,

20 regardless of who called the witness;

21 2. the exhibits that have been received into evidence; and

1 3. any facts to which the parties have agreed or stipulated.

2 What is Not Evidence

4 the facts are. I will list them for you:

6 in opening statements, closing arguments and at other times is intended to

9 memory of them controls.

12 should not be influenced by any of the objections or by my ruling on any of

15 instructed to disregard, is not evidence and must not be considered. In

16 addition, if testimony or exhibits have been received only for a limited

17 purpose, you must follow the limiting instructions I have given.

1 Direct and Circumstantial Evidence

3 proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is indirect

7 how much weight to give to any evidence.

8 Let me give you an example of circumstantial evidence. If you put a mouse in a

14 decide what facts were most likely true.

17 sense, and experience.

9 3. What was the witness’s manner while testifying?

11 prejudice concerning any party or any matter involved in the case?

13 evidence in the case?

15 done at another time, or by the testimony of other witnesses, or by other

18 forget things. You need to consider therefore whether a contradiction by a witness is an

20 has to do with an important fact or with only a small detail.

6 has greater weight than that of a larger number on the other.

8 Law Enforcement Testimony

9 In considering the testimony of a witness who is a law enforcement officer or agent

12 officer or agent of the government.

16 used in place of your memory.

20 your verdict should be – that is entirely for you to decide.

2 Plaintiff contends Richland County Sheriff’s Deputy Cameron Duecker

8 assault; battery; false imprisonment; and negligent retention and supervision.

11 Plaintiff’s Section 1983 claim

14 Constitution and laws of the United States.

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

12 deprived of constitutional rights, privileges, and immunities by an official’s abuse of his

16 with the authority of state law.

18 Plaintiff must prove by a preponderance of the evidence the following elements:

19 1. First, that Duecker was acting under color of law;

20 2. Second, that Duecker deprived Plaintiff of a right, privilege, or immunity

21 secured by the Constitution; and

22 3. Third, that Plaintiff sustained damages as a proximate result of being

23 deprived of a constitutional right.

1 1. The First Element: “Under Color Of”

4 2. The Second Element: Deprivation of Constitutional Right

8 be free from the use of excessive force.

10 In order to find that Plaintiff’s constitutional right to be secure against unreasonable

14 probable cause accompanied by exigent circumstances. An arrest made inside an

15 individual’s home without a warrant, consent, or probable cause accompanied by exigent

16 circumstances is presumptively unreasonable.

18 requiring no inference or implication. Implied consent is manifested by signs, actions, or

20 Probable cause can be explained as facts and circumstances within an officer’s

2 as to justify a warrantless entry or seizure when a warrant would ordinarily be required.

5 him, without regard to his underlying intent or motivation.

11 rather than with the benefit of hindsight and reflection.

13 given, no warrant, and no exigent circumstances.

14 B. Use of Excessive Force