The real bad news is that his lawyer will receive nothing, despite proving that officers used excessive force.
The unfortunate plaintiff is Thomas Frizzell. In November 2006, Frizzell worked at a Lowe’s Home Improvement Store in Springfield, Illinois.
One day, Frizzell arrived at work with only four minutes to spare before he needed to clock in. This ordinarily wouldn’t have been a problem, but that day he had the misfortune of driving past Sangamon County Deputy Carl Szabo on his way to work.
Szabo was on traffic patrol and thought Frizzell wasn’t wearing a seatbelt. The deputy trailed Frizzell into the Lowe’s parking lot with the intent of issuing a citation.
Now, Frizzell either didn’t hear or ignored Szabo’s commands to stop. In any event, the Lowe’s employee was intent on getting into the store after he exited his vehicle in the parking lot.
Szabo grabbed Frizzell wrist as he tried to enter the store and Frizzell — who was a foot taller and 75 pounds heavier than the deputy — broke free. Frizzell later claimed that he didn’t know who had grabbed him, he was only reacting.
At this point, Szabo pulled a gun and said “stop or I’ll shoot” (according to Frizzell), or you’re under arrest and “if you don’t stop I’ll taser you” (according to Szabo). In any event, other witnesses plainly heard Szabo issue the command to stop, and everybody agrees that Frizzell ignored the command and continued to enter the store.
Frizzell’s explanation is that he just wanted to go inside, clock in, and return with the store manager to clear up the matter with Deputy Szabo. This may have made sense to Frizzell, but the simple truth is that you don’t argue with a police officer or ignore his orders.
When Frizzell tried to continue on his way, Szabo tasered him repeatedly (the taser’s internal log indicated five times). The deputy added pepper spray for good measure, claiming later on that Frizzell ignored commands to stay down. Frizzell himself testified that Szabo also jumped or knelt on his chest before getting the handcuffs on and arresting him.
The charges were later dropped, but Lowe’s fired him because of the incident.
Predictably, Frizzell sued for false arrest and excessive force under §1983. A federal jury returned a verdict for Sangamon County and Deputy Szabo on the false arrest claim, but determined that Frizzell had been the victim of excessive force.
The problem for Frizzell was damages. He testified that he felt weak and faint for several weeks after the tasing, but that was about it.
The jury realized the quandary and during deliberations asked the judge if it had to award Frizzell any damages if it found in his favor on the issue of liability.
The judge instructed the jury that $1 was in order in the absence of proof of compensatory damages, and a $1 verdict is what Frizzell received.
Frizzell appealed to the 7th Circuit. Yesterday, that court decided that one dollar was all he would get.
Frizzell argued that pain, not injury, is the measure of damages under these circumstances, and that an award of nominal damages was plainly inappropriate given the excruciating pain he suffered from five taser shocks.
The problem for Frizzell was that the basis for the jury’s finding of excessive force was not stated.
The 7th Circuit explained that it “is possible the jury felt Szabo was justified in his use of the taser, but that the use of pepper spray or jumping on Frizzell’s chest was excessive in light of the tasering. After all, Szabo was faced with a suspect who appeared to be fleeing from a minor traffic violation, had ignored a lit-up cruiser and multiple requests to stop, was heading toward a busy public place, was much larger than he, and had refused to stay down as ordered. …
“Given this situation, the jury could have reasonably concluded that using the taser multiple times was not excessive, but that Szabo’s actions after using it were.”
Of course, getting only nominal damages became a real problem when Frizzell requested an award of attorney fees, particularly given he was unsuccessful in getting the $160,000 he sought in his complaint.
The district court rejected the request outright, and yesterday’s decision by the 7th Circuit affirmed that ruling:
“Clearly, the jury rejected Frizzell’s entire theory pertaining to false arrest and found that Szabo had probable cause — not surprising considering the circumstances surrounding what should have been a simple traffic ticket and Frizzell’s refusal to stop and listen to Szabo. …
“The jury further rejected the idea that Szabo employed excessive force warranting compensation, and so awarded only nominal damages on the excessive force claim. As the district judge found, ‘Frizzell, therefore, prevailed only marginally on his theory of recovery. Such a marginal victory does not support an award of fees in light of the other factors.’”(Frizzell v. Szabo)
– Pat Murphy