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90% Remittitur of $750,000 Strip Search Verdict Vacated; Plaintiffs Accept $440,385.08 on Remand

On June 30, 2010, the Eighth Circuit Court of Appeals held that a district court had abused its discretion in reducing a $750,000 jury award to $75,000 in a case raising illegal strip search claims involving two retired school teachers who were arrested while protesting President George W. Bush and the Iraq war.

On September 3, 2004, the Republican National Committee held a campaign rally at Noel Ridge Park in Cedar Rapids, Iowa to support candidates for federal and state office. Retired school teacher Alice McCabe and now-retired teacher Christine Nelson attended a peaceful protest sponsored by the Linn County Democratic Party.

McCabe carried an 8½” x 11” piece of paper affixed to a small yard sign that stated “Bad War No More,” with a “W” with a slash through it. Nelson did not have a sign but wore a small “Kerry Edwards” button.

Secret Service Agent Michael Parker ordered McCabe to move off the sidewalk. She and Nelson complied, moving to a strip of grass between the sidewalk and street. Several other people, including a man with a bucket who was collecting donations for Republicans, were in the same area.

Several minutes later, however, Parker ordered McCabe to move again. McCabe felt she was being singled out and asked Parker if he was going to tell everyone else to move as well. Parker radioed for assistance and Agent Bruce Macaulay responded. Macaulay ordered McCabe and Nelson to move. When they questioned him, Macauley arrested them for trespassing. Iowa State Troopers Rich Busch and Troy Bailey as well as Sergeant Jim Loveland responded and participated in the arrest.

McCabe and Nelson were arrested on a simple misdemeanor trespass charge. However, there was no lawful basis for the charge because rally organizers did not obtain formal approval to hold the rally or to close the streets and sidewalks for exclusive use of the event. Even so, the women were booked into the Linn County Jail and subjected to a “full strip search” in violation of jail policy.

Both women were required to strip naked and submit to a visual body cavity search, which required them to “bend over and spread their buttocks and allow an officer to inspect their rectal area. The visual body cavity search also included an inspection of the women’s vaginas. While Nelson was searched, the top half of a Dutch door to the room in which the search took place was open and male jailers passed by the open door during the search.”

The trespass charges were dismissed three months after the rally. Nelson and McCabe then filed suit in federal court, alleging that numerous state and federal officials had violated their constitutional rights by subjecting them to the unlawful arrest and strip searches. They also alleged a nationwide conspiracy on the part of the Bush administration to target and suppress protesters for exercising their First Amendment right to oppose Bush’s policy on the Iraq war.

Most of the claims in the suit were dismissed. The Iowa State Troopers who participated in the arrest reached a settlement prior to trial and testified as witnesses instead of defendants. Deputy Michelle Mais, who performed the strip and visual body cavity searches at the jail, conceded liability and only contested damages. Her conduct violated both jail policy and Iowa law, which prohibits strip searches for simple misdemeanor arrests absent probable cause.

The only claims that proceeded to trial were against Macaulay for the unlawful arrests and against Mais for the damages portion of the Fourth Amendment claims arising from the strip and visual body cavity searches at the jail. The jury found in favor of Macaulay, but awarded $250,000 to McCabe and $500,000 to Nelson on the search claims.

The district court granted Mais’ motion for a new trial, finding that the damage award was excessive and shocked the court’s conscience. The court gave the plaintiffs the option of accepting a 90% remittitur in the amount of $25,000 for McCabe and $50,000 for Nelson in lieu of a new trial, which they rejected. Mais then made an offer of judgment under Fed.R.Civ.P. 68 in the same amounts. Both plaintiffs rejected the offer and proceeded to a second damages trial, where the jury awarded $10,002 to McCabe and $45,802 to Nelson. [See: PLN, July 2009, p.31].

On appeal, the Eighth Circuit held the district court did not abuse its discretion in concluding that the original $750,000 jury award was excessive. The appellate court found error, however, with the 90% remittitur. The Court of Appeals explained, “once a district court decides to employ a damage comparison approach,” as in this case, “and thereafter identifies a range of reasonable jury awards in similar cases, it is not at liberty to remit an award to the low end of the range, or even somewhere in the middle of the range. A district court’s only choice is to remit to the maximum amount identified as within the reasonable range.”

The Eighth Circuit found that “the district court appears to have identified the low end of the range as being the nominal damages approved in Hunter v. Anger, 672 F.2d 668, 672 (8th Cir. 1972), and the high end of the range as being the $75,000 awarded to one plaintiff in Joan W. v. City of Chicago, 771 F.2d 1020, 1025 (7th Cir. 1985).”

The appellate court noted that Joan W., which involved a single female plaintiff who was subjected to a strip and body cavity search in 1978, “was the key case under the maximum recovery rule and therefore should have been used as the benchmark for determining the proper amount of remittitur.” Yet the remittitur amount the district court selected – $25,000 for McCabe and $50,000 for Nelson – was below the $75,000 identified as reasonable for a single plaintiff in Joan W., the Eighth Circuit found. As such, “the amounts selected by the district court are inconsistent with the maximum recovery rule, and reflect a clear abuse of discretion.”

The Court of Appeals also found the district court had abused its discretion by failing to calculate how much a $75,000 award in 1978 dollars was worth for an incident that occurred in 2004 after adjusting for inflation. The case was therefore remanded to calculate an appropriate remittitur for both plaintiffs.

Finally, the appellate court refused to attribute 40% of the plaintiffs’ attorney’s fees to their successful strip search claims. The Eighth Circuit found no abuse of discretion in the district court’s decision to attribute only 15% of the attorney’s fees to the strip search claims. However, as the district court’s remittitur was held to be inadequate, McCabe and Nelson were also “entitled to recover all reasonable fees incurred in the second trial.” See: McCabe v. Parker, 608 F.3d 1068 (8th Cir. 2010).

Following remand, on October 5, 2010 the district court ordered a new remittitur for McCabe and Nelson in the amount of $75,000 each. Adjusted for inflation since the 1978 ruling in Joan W., which served as the benchmark for the remittitur, the court offered $217,292.94 to each plaintiff. Nelson was awarded an additional $5,799.20 for medical expenses. The plaintiffs accepted the new remittitur and filed a stipulation dismissing the case. See: McCabe v. United States Secret Service, U.S.D.C. (N.D. Iowa), Case No. 1:05-cv-00073-LRR (2010 WL 3938383).

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