Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 117-12

Filed 05/26/2006

Page 1 of 4

Pani' Competing INSTRUCTION 38 litf fs §1983 Substantive Due Process--Fourteenth Amendment I have already instructed you concerning Pa t' c i ta te Ct lnis lm h t h i if f a y maliciously prosecuted him in violation of his Fourth Amendment right to freedom from unlawful search or seizure or his Eighth Amendment right to a fair trial by jury i teCtsci n l rs ctno h fr h pf g and have asked you to n h i' r a poe ui f i o s o li , y mi o m in t decide whether Plaintiff has proved either of those claims by a preponderance of the evidence. I will now ask you to decide whether Plaintiff has proved by a preponderance of the evidence that t Ct v le Pa t'right, guaranteed by the Fourteenth h i ia d lnis e y ot if f Amendment to the United States Constitution, to be free from deprivation of his liberty interest, including but not limited to his career and reputation and right to be free from unjust prosecution, without substantive due process of law. This claim incorporates Pa t' c i that Defendant maliciously lnis lm if f a prosecuted him for theft, but goes well beyond it. This claim encompasses the entire process by which the City: (1) charged Plaintiff with shoplifting; (2) investigated the charge of shoplifting; (3) reached the decision to terminate Plaintiff; (4) prosecuted Plaintiff for shoplifting; and (5) decided, in the form of the Civil Service Hearing Officer and Civil Service Commission, that Plaintiff should not be ga t a yrme yb yn b c p ytru hMac 1 , 0 3 d s i teCts rne n e d e o d a k a ho g d rh 5 2 0 , e pe h i' t y failure to prove that Plaintiff committed the shoplifting it used to justify his termination on January, 2, 2003. As explained in my instruction on malicious prosecution, Plaintiff claims that Defendant prosecuted in order to gain an advantage in defending against the civil

Case 1:04-cv-01067-MSK-CBS

Document 117-12

Filed 05/26/2006

Page 2 of 4

appeal of his planned termination, that it continued to prosecute him even though it knew he had not committed theft, and that it ratified or condoned perjury and obstruction of justice by the key prosecution witness against him because the wte s p r r a do s u tno j tew r h lu t D fn a t prosecution i s' ej y n b t co f sc ee e fl ee d n' n s u r i ui p o s of Plaintiff. In his Fourteenth Amendment claims, Plaintiff contends that, in addition to these wrongful acts, the City abused its power and authority, through policy-making officials, including the Chief and other senior officers of the Denver Fire D p r n,h Ma a e o P bcS ft teD n e Ct Atre' e at tte n g r f u l aey h e v r i t n y me i , y o sOffice, the Civil Service Commission Hearing Officer, and the Civil Service Commission, to deprive him of his property and liberty, including his right to engage in the occupation and career as a Firefighters and to be free of the stigmatization and shame that comes from being accused of a crime he did not commit, even though he did not commit the crime the City used to justify his termination and prosecution. The Fourteenth Amendment guarantees substantive due process to prevent the government from engaging in conduct that shocks the conscience or interferes with rights implicit in concepts of ordered liberty. To that end, the Fourteenth Amendment prohibits governmental conduct that is so outrageous that it shocks the conscience or otherwise offends judicial notions of fairness or is offensive to human dignity. Conduct intended to injure Plaintiff in some way unjustifiable by any lawful governmental purpose is most likely to be conscience-shocking. The question is not simply whether a liberty interest has been infringed, but whether the extent or

Case 1:04-cv-01067-MSK-CBS

Document 117-12

Filed 05/26/2006

Page 3 of 4

nature of the infringement is so severe, so disproportionate to the need presented and so inspired by malice, and not just unwise excess of zeal, that it amounts to inhumane abuse of official power. If you decide that Plaintiff has proved by a preponderance of the evidence ta sme o a te Cts f a p ly ht o r l h i' i l oc-making officials involved in this case l y n i manufactured or deliberately took advantage of evidence they had reason to believe or know was false to charge or prosecute Plaintiff for the crime of shoplifting, and that their conduct is shocking to the conscience, you must find that teCtv le Pa t'F ute th Amendment right to substantive due process. h i ia d lnis o r n y ot if f e If you decide that Plaintiff has proved by a preponderance of the evidence that smeo a teCts i loc-making officials involved in this case engaged o r lh i'fap ly l y n i in questionable procedures, placed pressure on people to incriminate Plaintiff, engaged in hasty condemnation of Plaintiff without carefully considering all of the evidence for or against him, treated him as they did because of his race or national origin, or otherwise sought to deliberately and purposefully deprive him of the benefit of his Constitutional liberty rights through conduct that is shocking to the cn c n e yumu ti ta teCt v le Pa t' F ute t A n me t o si c , o e s f d h th i ia d lnis o r n me d n n y ot if f e h right to substantive due process. If you decide that Plaintiff has proved by a preponderance of the evidence that person(s) conducting the investigation under the direction of senior policymaking officials and attorneys for the City deliberately concealed or downplayed evidence that exonerated Plaintiff, or defamed Plaintiff in order to secure his prosecution by a third party, or and conspired to secure, and did secure, through

Case 1:04-cv-01067-MSK-CBS

Document 117-12

Filed 05/26/2006

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misrepresentations, fraudulent concealment, and stigmatizing publication of false ae ai so ci n l o d c Pa t ' malicious prosecution and termination lg t n f r a c n u t lnis l o mi , if f without adequate relief after a post-termination hearing, and that their conduct is shocking to the conscience, y u mu tfd ta te Ct v l e Pa t' o s i ht h n i ia d lnis y ot if f Fourteenth Amendment right to substantive due process.

Authority:

Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004); DiBlasio v.

Novello, 344 F.3d 292 (2d Cir. 2003); Moran v. Board of Police Commissioners, 296 F.3d 638 (8th Cir. 2002); Bishop v. Wood, 426 U.S. 341 (1976); Zinermon v. Burch, 494 U.S. 113 (1990); Cf., Parrat v. Taylor, 451 U.S. 527 (1981).