## Facts

- Margie Hollins and other plaintiffs served as commissioners of the City of Wellston, Missouri’s Land Clearance and Housing Authority (LCRA/HA), having been appointed by a prior mayor.
- After Robert Powell became mayor, he disputed the validity of the plaintiffs’ appointments and appointed a different set of commissioners.
- The plaintiffs nevertheless attempted to conduct a scheduled LCRA/HA meeting at City Hall.
- Powell interrupted the meeting and demanded that the plaintiffs stop acting as commissioners.
- When the plaintiffs refused and indicated they could produce documentation of their appointments, Powell summoned police officers and directed that the plaintiffs be arrested and removed from the meeting.
- The plaintiffs were taken into custody and processed; charges were later dismissed.
- The plaintiffs sued Powell and the City of Wellston under 42 U.S.C. § 1983, alleging constitutional violations arising from their removal and arrest.
- During discovery, the plaintiffs sought to depose the City’s attorney; the City moved to quash. The district court granted a motion to compel, reasoning that the City was placing advice of counsel at issue and thus waiving the attorney-client privilege.
- At trial, the plaintiffs called Powell, who testified about communications with the City’s attorney and his own attorney; the defendants did not object to the plaintiffs’ questions on those subjects.
- The plaintiffs then called the City’s attorney as a witness. The defendants objected, but the district court allowed the testimony.
- The jury returned a verdict for the plaintiffs, awarding compensatory and punitive damages. The district court entered judgment, and the City and Powell appealed.

## Issues

1. Whether the defendants waived the attorney-client privilege—supporting discovery and trial testimony from the City’s attorney—by placing advice of counsel at issue and by allowing testimony about attorney communications without timely objection.
2. Whether the evidence supported § 1983 liability against Powell for ordering the plaintiffs’ arrest and removal from the meeting.
3. Whether the City could be held liable under § 1983 based on Powell’s actions as a final municipal policymaker in the area of housing-authority appointments and related enforcement decisions.
4. Whether the compensatory and punitive damage awards were excessive and should be reduced by remittitur or retried on damages.

## Decision

- The Eighth Circuit affirmed the judgment on liability against Powell and the City.
- The court upheld the district court’s rulings permitting discovery and testimony from the City’s attorney, concluding that the privilege was waived where defendants injected advice of counsel into the case and permitted testimony about attorney communications without objection.
- The court held that the City could be liable under § 1983 because Powell’s directive to arrest and remove the plaintiffs could be treated as municipal policy when made by an official with final policymaking authority in the relevant domain.
- The court found the damages excessive and remanded with instructions to remit compensatory damages to $40,000 and punitive damages against Powell to $2,000, with a new trial limited to damages if plaintiffs rejected the remittitur.

## Legal Principles

- A party waives attorney-client privilege when it affirmatively relies on advice of counsel as part of its position, or otherwise places attorney advice directly in issue.
- Privilege protection can also be waived by allowing testimony about attorney communications without timely objection, opening the subject to further examination.
- A municipality may be liable under § 1983 when a constitutional injury is caused by an official policy, including a single decision by an official who has final policymaking authority in the relevant area.
- Ordering an arrest or removal without lawful basis can support § 1983 liability for the resulting deprivation of constitutional rights.
- Appellate courts may require remittitur of excessive compensatory or punitive damages and permit a damages-only retrial if the plaintiff declines the reduced amounts.

## Conclusion

Hollins v. Powell affirms § 1983 liability where a mayor ordered sitting housing commissioners arrested and removed from a public meeting, holds that the City may be liable because the mayor’s act could constitute municipal policy, and approves compelled attorney testimony after defendants waived privilege by placing advice of counsel in play and permitting attorney-communication testimony without objection; the Eighth Circuit left liability intact but reduced the damages through remittitur subject to a damages-only retrial.


Hollins v. Powell, 773 F.2d 191 (1985)