## Facts

- Jo Ann Yellow Bird lived with her husband in the City of Gordon, Nebraska.
- Yellow Bird and her husband were vocal critics of alleged police misconduct in Gordon.
- Prior investigations by county officials and an outside agency concluded Gordon’s small police force had acted improperly and needed closer supervision.
- One evening, Officer Clifford Valentine, a Gordon police officer, attempted to arrest Yellow Bird’s husband.
- Yellow Bird intervened during the encounter; Valentine kicked her in the abdomen and threw her to the floor.
- Yellow Bird was visibly in the later months of pregnancy at the time of the incident.
- Valentine handcuffed Yellow Bird, placed her in his patrol car, and drove her toward the county jail (about twenty miles away).
- During transport, Yellow Bird repeatedly asked for medical attention, but Valentine refused to take her to a hospital.
- On the way, Valentine stopped the car and threatened to take Yellow Bird into the country and shoot her.
- Yellow Bird suffered serious physical and emotional injuries; her unborn child died in utero and was delivered dead about two weeks later.
- Yellow Bird sued Valentine and the City of Gordon (among others), asserting federal civil-rights claims under 42 U.S.C. § 1983 and related state-law claims.
- A jury found Valentine and the City liable for violating Yellow Bird’s federal civil rights and awarded $300,000 in compensatory damages.
- Yellow Bird later died, and Cleo R. Herrera, as special administrator of her estate, continued the action.
- The case reached the Eighth Circuit after post-trial proceedings that included a remand related to attorney’s fees and expenses.

## Issues

1. Did the trial court err by instructing the jury that it could award compensatory damages for the loss of constitutional rights in addition to damages for physical and emotional injury?
2. Was there sufficient evidence to hold the City of Gordon liable under § 1983 based on a municipal policy or custom, rather than impermissible respondeat superior?
3. Did the district court abuse its discretion by allowing amendment of the pleadings to conform to proof of a § 1983 claim against the City under Fed. R. Civ. P. 15(b)?
4. Were the defendants entitled to a new trial or judgment as a matter of law based on alleged errors in submitting state-law claims, insufficiency of the evidence, or an allegedly excessive verdict?
5. Did the district court award excessive attorney’s fees and expenses?

## Decision

- The Eighth Circuit affirmed the judgment on liability and compensatory damages against Valentine and the City of Gordon.
- The court rejected the argument that the damages instruction authorized improper “abstract” compensation untethered to injury; the jury could compensate for constitutional deprivations and related mental and emotional harms.
- The court held the evidence supported municipal liability because a city’s ongoing failure to correct known unconstitutional police conduct can constitute an actionable municipal policy or custom under § 1983.
- The court upheld the district court’s decision to allow amendment under Rule 15(b) where the issue of municipal liability had been tried on the evidence and the defendants were not unfairly prejudiced.
- The court concluded the $300,000 compensatory award was supported by the record and was not so excessive as to warrant reversal.
- The court affirmed the judgment except as to attorney’s fees and expenses, which it found excessive and required modification.

## Legal Principles

- Compensatory damages under § 1983 are guided by tort damages concepts and aim to compensate for injury caused by the constitutional violation.
- In a § 1983 case, compensatory damages may include non-economic harms tied to the violation, such as humiliation, mental anguish, and deprivation of constitutional rights, when supported by the evidence and the nature of the misconduct.
- A municipality is not liable under § 1983 solely because it employs a tortfeasor; however, it may be liable when an official policy or custom causes the constitutional deprivation.
- A city’s continued failure to remedy known unconstitutional conduct by its police officers may support a finding of an informal policy or custom for § 1983 municipal liability.
- Under Fed. R. Civ. P. 15(b), a court may permit amendment of the pleadings to conform to the evidence when an issue is tried by consent and the opposing party is not unfairly prejudiced.
- Attorney’s fees in civil-rights actions must be reasonable; appellate courts may reduce or modify a fee award that is excessive.

## Conclusion

Herrera v. Valentine holds that a jury may award substantial compensatory damages under § 1983 for severe police misconduct, including harms associated with deprivation of constitutional rights and resulting emotional distress, and that a city may be liable where it knowingly tolerates unconstitutional police behavior as a matter of custom; the Eighth Circuit affirmed the liability and $300,000 damages judgment but modified the attorney’s fee award as excessive.


Herrera v. Valentine, 653 F.2d 1220 (1981)