Larry CORRIZ, Plaintiff-Appellee, v. Emilio NARANJO, Steve Martinez, Canuto Martinez, and Rio Arriba County Sheriff's Department, Defendants-Appellants, 667 F.2d 892

McKAY, Circuit Judge. This appeal primarily challenges a jury verdict for compensatory damages in a suit under 42 U.S.C. § 1983 as being so excessive as to require the grant of a new trial on the issue of damages. The facts recited herein are either uncontested or consistent with the jury’s verdict. Plaintiff Larry Corriz, then 18 years of age, was driving his car to Santa Fe, New Mexico, on September 3, 1976, when he stopped to visit with two friends who were sitting in their parked car in an arroyo next to the road. Larry parked his car alongside theirs and the three conversed through the car window.

His friends were drinking beer in their car. A few minutes later, Rio Arriba County Deputy Sheriffs Steve Martinez and Canuto Martinez arrived. Steve Martinez was drunk. Claiming that they smelled marijuana, the deputies arrested Larry’s two friends. The friends informed the deputies that Larry was not involved and was only an innocent bystander. Nevertheless, Deputy Canuto Martinez twice searched Larry’s person and his car. He then told Larry to leave, whereupon Larry got in his car, backed out of the arroyo and proceeded to drive toward Santa Fe.

At that point, Deputy Steve Martinez drew his gun and fired at Larry. Steve Martinez testified that he believed Larry was escaping custody. The bullet penetrated the trunk, the back seat and the front seat before striking Larry in the back, causing a painful abrasion but sparing his life. Larry continued driving to a hospital where he was treated. He testified that he suffered great pain and emotional distress as a result of the shooting. After learning of the incident from his deputies, Sheriff Emilio Naranjo went to the hospital to check on Larry’s condition.

Sheriff Naranjo then asked the District Attorney’s office to investigate the matter. The District Attorney’s office dispatched investigator Freddie Martinez to look into the matter. Investigator Martinez found no evidence of wrongdoing on the part of the sheriff’s deputies. As a result of this investigation, the District Attorney ordered charges to be filed against Larry for escaping custody. This order was relayed by Investigator Martinez to Lieutenant Griego of the sheriff’s office. Lieutenant Griego directed Sargeant Joe Salazar to file charges against Larry, which he did on September 15, 1976.

The record contains testimony that the District Attorney’s office had cooperated in the past in the prosecution of false criminal charges to aid Sheriff Naranjo in the defense of civil suits against him. This was only the beginning of Larry’s encounter with Rio Arriba County officials. Sometime after the initial shooting, unidentified deputy sheriffs stopped Larry’s car, informing him they had a warrant for his arrest. When they refused to show him the warrant, Larry drove off. The deputies fired a barrage of shots at his car and followed him home, but did not arrest him.

The September 3rd shooting came to the attention of Antonio De Vargas, chairman of La Raza Unida, a minor political party in Rio Arriba County which views its primary purpose as halting further entrenchment of the Democratic Party machine in the county. Sheriff Naranjo and his deputies are members of the Democratic party; indeed, Sheriff Naranjo is the county chairman of the party. Mr. De Vargas visited Larry and his family and advised them to complain to the authorities about the September 3rd shooting. At that time no charges had yet been filed against Larry. Mr.

De Vargas wrote to the New Mexico Attorney General on behalf of the Corriz family, urging removal of Sheriff Naranjo because of the shooting. The Attorney General was already conducting an investigation of allegations of corruption and abuses by Rio Arriba County officials, focusing particularly on Sheriff Naranjo. On September 14,1976, a local newspaper reported the substance of Mr. De Vargas’ complaint to the Attorney General. The very next day Sargeant Salazar officially charged Larry with escaping custody, and an arrest warrant was issued.

Larry voluntarily surrendered to magistrate court, which released him on a property bond. In May of 1977, Larry moved to dismiss the charge for failure to prosecute within the time required by New Mexico law, and the motion was granted. Larry’s complaint alleged four causes of action. Count One states a claim under the Civil Rights Act, 42 U.S.C. § 1983, alleging that defendants Naranjo, Steve Martinez, Canuto Martinez and the Sheriff’s Department deprived him of liberty without due process of law.

More specifically, he alleged that the defendants invaded his fundamental rights, protected by the due process clause of the fourteenth amendment, to be free from illegal detention, the threat of illegal imprisonment, physical abuse, and unlawful arrest without evidence to support the charge. Count Two is a pendent state law claim of malicious prosecution against Sheriff Naranjo, the Sheriff’s Department, Steve Martinez and Canuto Martinez. Count Three is a pendent state law claim of assault and battery against Steve Martinez only.

The jury awarded damages as follows: on Count One, against all four defendants in the sum of $30,000; on Count Two, against Sheriff Naranjo and the Sheriff’s Department in the sum of $30,000; and on Count Three, against Steve Martinez in the sum of $2,273. The jury also awarded punitive damages in the amount of $30,000 against Sheriff Naranjo, $20,000 against Steve Martinez, and $10,000 against Canuto Martinez. I. Defendants contend on appeal that the jury’s verdict was excessive as a matter of law and represents “double recovery” for the same injuries.

Plaintiff asserts that defendants’ challenges to the jury instructions and verdicts were not properly preserved for review. Rule 51 of the Federal Rules of Civil Procedure provides that: At the close of the evidence or at such earlier time during the trial as the court • reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed.

No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make objection out of the hearing of the jury. The record reflects that counsel for defendants did not adequately posit their objection to the jury instructions as allowing duplicative recovery for the same injuries. Before the jury began its deliberations, the court afforded counsel an opportunity to object to the instructions.

Counsel for defendants did object to several instructions, all of which objections were overruled.

Counsel objected to the inclusion of the malicious prosecution claim in the statement of claims instruction (Instruction No. 4) on the grounds that “the evidence shows that [it] should be dismissed from the case as a matter of law.” Counsel objected to the deprivation of liberty instruction (Instruction No. 20) on the basis that “[a]fter the Court has already stated the claims of the parties in instruction number 4 it repeats, it repeats [sic] those claims and reemphasizes the claims of alleged misconduct and deprivation of rights.” Counsel also claimed that the deprivation of liberty without due process issue “is not applicable to the facts here” and is “not truly an issue framed by the evidence.” Counsel further objected to the elements of damage instruction (Instruction No. 42) on the ground that it instructed the jury to compensate the plaintiff for the various aspects of liberty of which he was deprived, such as the right to be free from physical abuse. .

Error was claimed “in that violation of civil rights in themselves would be, would create liability but are not measures of damages.” “The further problem with it,” counsel continued, is that there is “[n]o guide either in the law or in the proof of how you set a dollar amount of any sort on that kind of a — -for damage calculation under that standard.” Counsel also objected to the instruction concerning the measure of damages for violation of constitutional rights (Instruction No. 43) which instructed the jury that “[t]he value of such rights, while difficult to assess, must be considered great.” Specifically, counsel objected that Instruction No. 43 “is telling the jury that this element of damage must be assessed as being a damage that’s of great size.” Defendants’ other objections are not pertinent here.

It is obvious from a review of defendants’ objections to the jury instructions that no objection was made to allowing the jury to return damage verdicts under each Count of the complaint. The objection to submission of the malicious prosecution claim has nothing to do with defendants’ assertion that the instructions allowed multiple recovery of damages for a single injury. The objection to Instruction No. 20 is similarly irrelevant to defendants’ claim on appeal.

That instruction did not repeat the claims outlined in Instruction No. 4 but rather explained to the jury what is meant by a deprivation of liberty without due process of law. Counsel’s claim that the deprivation of liberty issue was not framed by the evidence goes only to liability, not damages. The objection to Instruction No. 42 also misses the point. As discussed more fully hereinafter, although deprivation of civil rights is not a measure of damage, it most certainly is a compensable element of damage.

The fact that damages for deprivation of civil rights are difficult to assess does not mean that such damages should not be awarded. See Carey v. Piphus, 435 U.S. 247, 258, 98 S.Ct. 1042, 1049, 55 L.Ed.2d 252 (1978). Finally, the objection to Instruction No. 43 is to the size of the damage award which it allows, rather than to-any supposed duplication in that award.

Counsel’s remarks do not meet Rule 51’s requirement that the grounds of objection be stated “distinctly.” The purpose of Rule 51 is to prevent a litigant from taking advantage of an error which could be rectified by the court if called to its attention by timely and specific objection. Taylor v. Denver and Rio Grande Western Railroad Co., 438 F.2d 351, 353 (10th Cir. 1971). Rule 51 requires counsel “to make it abundantly clear to the trial court the objecting party’s position.” Rogers v. Northern Rio Arriba Elec. Co-op., Inc., 580 F.2d 1039, 1042 (10th Cir. 1978).

In the instant case, the trial court submitted three verdict forms to the jury: one for the civil rights claim, one for the assault and battery claim, and one for the malicious prosecution claim. Defendants did not object to the submission of the three verdict forms. To be sure, defendants did object to submission of the malicious prosecution claim on the ground that the elements of that cause of action were not proven as a matter of law. They further objected to submission of the § 1983 claim on the ground that there was no evidence to support it.

These are shotgun objections which do not meet Rule 51’s specificity requirement. There was no way for the trial court to know of defendants’ fear that submission of the three verdict forms might lead to double recovery on some element of damage. The trial judge cannot be held to the standard of omniscience apparently envisioned by defendants. Webster’s Dictionary defines “distinct” as “obvious,” “plain,” or “unmistakable.” We cannot say defendants’ “double recovery” objection was made plain, much less unmistakable.

Rule 51’s requirement that the ground of objection be stated “distinctly” requires more specificity than defendants mustered. We therefore hold that the double recovery objection was not preserved for our review. II. There remains for our review the question of whether the jury’s verdict was excessive. The only real issue is whether, as defendants claim, Instruction No. 43 was erroneous. Instruction No. 43 reads as follows: IF YOU FIND THAT THE PLAINTIFF HAS BEEN DEPRIVED OF A CONSTITUTIONAL RIGHT, OR SEVERAL CONSTITUTIONAL RIGHTS, YOU MAY AWARD HIM DAMAGES TO COMPENSATE HIM FOR THE DEPRIVATION.

DAMAGES FOR THIS TYPE OF INJURY ARE MORE DIFFICULT TO MEASURE THAN DAMAGES FOR A PHYSICAL INJURY OR AN INJURY TO ONE’S PROPERTY. THERE ARE NO MEDICAL BILLS OR OTHER EXPENSES BY WHICH YOU CAN JUDGE HOW MUCH COMPENSATION IS APPROPRIATE. THE VALUE OF SUCH RIGHTS, WHILE DIFFICULT TO ASSESS, MUST BE CONSIDERED GREAT. THE PRECISE VALUE YOU PLACE UPON ANY AND EACH CONSTITUTIONAL RIGHT WHICH YOU FIND WAS DENIED TO PLAINTIFF IS WITHIN YOUR DISCRETION.

YOU MAY WISH TO CONSIDER THE IMPORTANCE OF THE RIGHT OR RIGHTS IN OUR SYSTEM OF GOVERNMENT, THE ROLE WHICH THIS RIGHT OR THESE RIGHTS HAVE PLAYED IN THE HISTORY OF OUR REPUBLIC, THE SIGNIFICANCE WHICH THIS PARTICULAR ISSUE HAD FOR THE PLAINTIFF, AND THE SIGNIFICANCE OF THE RIGHT IN THE CONTEXT OF THE ACTIVITIES WHICH PLAINTIFF WAS ENGAGED IN AT THE TIME OF THE VIOLATION OF THE RIGHTS. (emphasis added). Defendants objected to Instruction No. 43 on the ground that it “is telling the jury that this element of damage must be assessed ... of great size,” and thus preserved this issue for review.

Their contention is that this instruction misled the jury into awarding an excessive verdict on Count One. Defendants rely on Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), for their proposition that substantial damages cannot be awarded for the deprivation of constitutional rights per se. Carey held that a plaintiff could recover only nominal damages for a procedural due process violation in the absence of proof of actual injury. Id. at 248, 98 S.Ct. at 1044. But the violation here was far from procedural.

Defendants deprived plaintiff of his liberty interests in bodily integrity and arrest based on probable cause. These were violations of plaintiff’s substantive rights protected by the due process clause of the fourteenth amendment. In Carey, the Court specifically noted that cases awarding damages for deprivation of substantive constitutional rights were not there controlling. Id. at 264-65, 98 S.Ct. at 1052-53. One need not look far to find authority for the proposition that substantial damages, both compensatory and punitive, may be awarded for the violation of substantive constitutional rights.

We therefore reject defendants’ argument that only nominal damages can be awarded for the deprivation of plaintiff’s substantive fourteenth amendment rights. See Konczak v. Tyrrell, 603 F.2d 13, 17 (7th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980); Baskin v. Parker, 602 F.2d 1205, 1210 (5th Cir. 1979) (rejecting the same erroneous construction of Carey). In any event, plaintiff produced sufficient evidence of actual damages in this case to justify a substantial compensatory award under Count One. Plaintiff proved his medical expenses and loss of earnings.

He testified that he was afraid that he might go to prison during the period that the false charges were pending; he lost interest in recreational activities; he can only do light work; he has suffered personality changes and has lost confidence in himself; he has begun to drink heavily; he has a constant irrational fear of police officers; he has trouble sleeping and has, a recurring nightmare in which the police shoot at him and his brother and kill his brother. A psychiatrist testified that plaintiff suffers from traumatic neuroses from which he may never recover and recommended a year of therapy.

Defendants called no witnesses to rebut the evidence of psychological injury. Although some of these damages are not quantifiable with precision, they are nevertheless actual damages which could support the compensatory award in this case. It is settled that damages may be awarded for nonpecuniary injury, such as psychological harm, where plaintiff has been deprived of his substantive constitutional rights. In Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979), the court recognized that: Emotions are intangible but they are none the less perceptible.

The hurt done to feelings and to reputation by an invasion of constitutional rights is no less real and no less compensable than the cost of repairing a broken window pane or a damaged lock. Wounded psyche and soul are to be salved by damages as much as the property that can be replaced at the local hardware store. Id. at 1209. Justice requires that plaintiff be compensated for the intangible injuries he suffered as a result of the constitutional deprivation.

The difficulty of setting a money value on intangible, nonpecuniary, but actual damages cannot be permitted to deter society from its duty to compensate plaintiff. It is the law in this Circuit that absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial, the jury’s determination of the amount of damages is inviolate. Ketchum v. Nall, 425 F.2d 242, 244 (10th Cir. 1970); Morgan v.

Labiak, 368 F.2d 338, 341 (10th Cir. 1966). “Ordinarily this question is primarily for the trial court alone and a determination thereof presents no grounds for reversal on appeal except for manifest abuse of discretion.” Smith v. Welch, 189 F.2d 832, 837 (10th Cir. 1951). We cannot say that the award here was so excessive as to “shock the judicial conscience,” in light of the many other cases upholding large compensatory awards for deprivations of substantive constitutional rights.

Thus we are left with defendants’ argument that Instruction No. 43 tainted the jury’s deliberations so as to produce an excessive award. We hold that Instruction No. 43 was not so prejudicial as to require reversal in this case. [I]n cases involving constitutional rights, compensation should not be approached in a niggardly spirit. It is in the public interest that there be a reasonably spacious approach to a fair compensatory award for denial or curtailment of the right.

Specifying such damages will always be difficult, but they must be at least an amount which will assure the plaintiff that personal rights are not lightly to be disregarded and that they can be truly vindicated in the courts. Halperin v. Kissinger, 606 F.2d 1192, 1208 (D.C.Cir.1979), aff’d by an equally divided court, 452 U.S. 713, 101 S.Ct. 3132, 69 L.Ed.2d 367 (1981) (footnotes omitted). We agree with this statement and therefore refuse to reverse the trial judge merely because he took a “reasonably spacious approach” to awarding damages for constitutional deprivations.

While perhaps not the preferred form, Instruction No. 43 did no more than make clear to the jury that they should not lightly disregard plaintiff’s constitutional rights. That instruction properly left valuation of damages entirely within the jury’s discretion. In light of the evidence presented, we are satisfied that the amount of the verdict does not itself suggest that the jury applied an incorrect standard in evaluating plaintiff’s damages. The testimony conclusively shows that plaintiff underwent dramatic personality changes as a result of the shooting and the false arrest.

He suffers from insomnia, paranoia, and traumatic neuroses from which he may never recover. The expert testimony concerning plaintiff’s psychological injury was not rebutted by defendants. This situation is like that presented in Redmond v. Baxley, 475 F.Supp. 1111 (E.D.Mich.1979), where the plaintiff prisoner brought a § 1983 action for damages resulting from a rape which occurred in a prison infirmary.

Aside from the physical injury caused by the rape, the plaintiff’s expert testified that “plaintiff was depressed, suffered rape flashbacks, could not develop friendships, perceived himself as a woman, and seemed unable to have relationships with women” as a result of the rape. As in the case before us, this expert testimony was uncontroverted. The jury awarded the plaintiff $130,000, and the court held that this verdict was not excessive. Id. at 1121-22. In this case, as in Baxley, plaintiff presented uncontradicted evidence of substantial injury.

The compensatory award here is less than half the amount awarded by the jury in Baxley for comparable injuries. This reinforces our conclusion that the damage award in the instant case was not so excessive as to require a new trial. In sum, we hold that the trial judge did not abuse his discretion in refusing to order a new trial on the grounds of excessiveness of the verdict. We have considered the other contentions raised by defendants and find them to be without merit. The judgment below is therefore AFFIRMED. .

Had defendants made their objection clear, the trial court would have been afforded the opportunity, envisioned by Rule 51, to analyze the supposed error and rectify it if it were found to exist. We note that one court has found a novel way to cure the error in a situation such as this. In Linn v. Garcia, 531 F.2d 855 (8th Cir. 1976), the trial court “merged” a § 1983 claim with a pendent state law assault and battery claim “[ijn view of the close relationship between the first and second causes of action and to avoid the possibility of a double recovery.” Id. at 857.

In this case, had the danger of double recovery been real, the trial judge could have merged Counts One and Three, thus curing the error and avoiding the need for appellate review. In this way, the purpose of Rule 51 would have been served. Although we do not reach the merits of defendants’ double recovery objection, we note that had the trial court in this case merged Counts One and Three and had the jury then returned a verdict of $32,273 on the merged claim, we would not consider such a verdict excessive or duplicative in view of the unrebutted evidence of plaintiffs injuries.

See cases cited at note 4 infra. . See, e.g., City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 252, 101 S.Ct. 2748, 2752, 69 L.Ed.2d 616 (1981); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 395, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971); Monroe v. Pape, 365 U.S. 167, 173, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961); Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759 (1927). See cases cited at note 4 infra. . See, e.g., Brule v. Southworth, 611 F.2d 406, 411 (1st Cir. 1979); Halperin v.

Kissinger, 606 F.2d 1192, 1207 (D.C.Cir.1979), aff’d by an equally divided court, 452 U.S. 713, 101 S.Ct. 3132, 69 L.Ed.2d 367 (1981); Konczak v. Tyrrell, 603 F.2d 13, 17 (7th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980); Baskin v. Parker, 602 F.2d 1205, 1209 (5th Cir. 1979); Simineo v. School Dist. No. 16, 594 F.2d 1353, 1357 (10th Cir. 1979); Paton v. LaPrade, 524 F.2d 862, 871 (3rd Cir. 1975); Williams v. Matthews Co., 499 F.2d 819, 829 (8th Cir. 1974), cert. denied, 419 U.S. 1021, 1027, 95 S.Ct. 495, 507, 42 L.Ed.2d 302 (1974); Donovan v.

Reinbold, 433 F.2d 738, 743 (9th Cir. 1970). . See, e.g., City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 252, 101 S.Ct. 2748, 2752, 69 L.Ed.2d 616 (1981) ($72,910); Herrera v. Valentine, 653 F.2d 1220, 1231 (8th Cir. 1981) ($300,000); Flores v. Pierce, 617 F.2d 1386, 1392 (9th Cir. 1980), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980) ($48,500); Brule v. Southworth, 611 F.2d 406, 411 (1st Cir. 1979) ($2,000); Konczak v. Tyrrell, 603 F.2d 13, 17-18 (7th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980) ($12,500); Cruz v.

Beto, 603 F.2d 1178, 1186 (5th Cir. 1979) ($10,291); Simineo v. School Dist. No. 16, 594 F.2d 1353, 1357 (10th Cir. 1979) ($60,000); Stoddard v. School Dist. No. 1, 590 F.2d 829, 835 (10th Cir. 1979) ($33,000); Linn v. Garcia, 531 F.2d 855, 860 (8th Cir. 1976) ($1,250); Redmond v. Baxley, 475 F.Supp. 1111, 1121-22 (E.D.Mich.1979) ($130,000). . A preferable form of instruction is that used in Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981). See id. at 1227.