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ATTORNEY [ licensed to practice in KOREA, U.S.A., ILLINOIS ] LEE, JAE WOOK
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Presumed Damages May Be Available in Constitutional Torts
in [ 명예훼손,모욕 소송 ]
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Your client's constitutional rights have been violated but your client has not suffered any injury other than the deprivation of the constitutional right itself. The case appears to be a loser. Is it really worth pursuing if you cannot prove an actual injury? This scenario has certainly presented itself to many legal practitioners. Even though it looks like you may be out of luck in getting damages for your client, there might be another way.
Presumed damages can be awarded even in the absence of proof of an actual injury. Unless your practice involves handling defamation cases, you probably have not had many chances to seek presumed damages for your client. Compensatory, nominal and punitive damages make up the usual damage pool that attorneys and plaintiffs seek. Sometimes, the type of harm suffered cannot be easily defined and normal categories of damages cannot serve to compensate your client. In these scenarios, an award of presumed damages may be appropriate. Presumed damages require no proof of an actual injury to be awarded. They are presumed as a matter of law to result naturally and necessarily from a tortious act. While traditionally sought in defamation per se cases, where actual harm to the individual is assumed, presumed damages have been sought and recovered when certain constitutional violations have occurred. Courts are reluctant to award presumed damages in non-defamation cases, some courts going as far as rejecting the doctrine of presumed damages in most constitutional torts. Despite the smaller nature of presumed damages awards and the reluctance of some courts to permit the award of any presumed damages, under the right circumstances, presumed damages can act as a way to compensate a plaintiff who otherwise might have received no compensation at all.
The most common types of constitutional violations that warrant presumed damages include voting rights cases, unlawful arrest cases, and freedom of speech cases. Presumed damages for constitutional torts were first recognized in U.S. jurisprudence in Wayne v. Venable, 260 F. 64 (8th Cir. 1919), a voting rights case. The court held that the right to vote is "so valuable that damages are presumed from the wrongful deprivation of it without evidence of actual loss." This case helped to set the stage for the application of the doctrine of presumed damages.
A little less than 10 years later, the U.S. Supreme Court addressed the viability of awarding presumed damages in a constitutional tort in Nixon v. Herndon, 273 U.S. 536 (1927). Another voting rights case, the court in Nixon reversed the dismissal of a complaint alleging $5,000 in damages for the unconstitutional denial of the plaintiff's right to vote. Since election results are usually unaffected by a single vote, the court held that damages can only be presumed from the injury to a plaintiff's rights and thus presumed damages might be warranted.
Although the Supreme Court has rejected the notion that presumed damages can be awarded for the inherent value of a constitutional right, it has acknowledged that presumed damages may be appropriate in the event of nonmonetary harm caused by the deprivation of a constitutional right. The Supreme Court in Carey v. Piphus, 435 U.S. 247 (1978), and Memphis Community School District v. Stachura, 477 U.S. 299 (1986), ultimately limited when presumed damages may be awarded while still acknowledging their viability. Despite the limitations set forth in Carey and Stachura and the court's ultimate decision to reject presumed damages in both cases due to the presence of an actual injury, the court did not eliminate the possibility for future plaintiffs to obtain presumed damages for constitutional violations.
In Carey, the court rejected the contention that damages should be presumed to flow from every deprivation of the right to procedural due process. Carey established that the inherent value of a constitutional right alone does not warrant presumed damages when an individual is deprived of that right.
In another procedural due process case, the Supreme Court in Stachura stated, "When a plaintiff seeks compensation for an injury that is likely to have occurred but difficult to establish, some form of presumed damages may possibly be appropriate. In those circumstances, presumed damages may roughly approximate the harm that the plaintiff suffered and thereby compensate for harms that may be impossible to measure." This pronouncement has formed the basis for when presumed damages may be awarded. Presumed damages don't compensate a plaintiff for the inherent value of a constitutional right that has been infringed upon, but instead compensate for the harm that flows from the deprivation of that right. It must be noted that Stachura made clear that presumed damages can only be a substitute, not a supplement, for compensatory damages. As an award of compensatory damages would indicate that a definable and measurable injury occurred, other than the harm from a deprivation of a constitutional right, the need for presumed damages would be obviated.
Since Stachura, presumed damages have been awarded for a number of different constitutional violations. The U.S. Court of Appeals for the Seventh Circuit in City of Watseka v. Illinois Public Action Council, 796 F.2d 1547 (7th Cir. 1986), affirmed an award of presumed damages after a political canvassing company's First Amendment rights were violated by a municipal ordinance limiting door-to-door solicitation. The presumed damages award was not based on the abstract value of the constitutional right, but instead was based on the injury suffered due to the fact that the plaintiff was prevented from exercising its First Amendment rights.
The Sixth Circuit in Walje v. City of Winchester, 827 F.2d 10 (6th Cir. 1987), upheld an award of presumed damages for a violation of First Amendment rights, holding that an "injury was likely to have occurred, but the specific elements of the damage were difficult to pinpoint because of the nature of the injury." The Ninth Circuit in Trevino v. Gates, 99 F.3d 911, 921 (9th Cir. 1996), recognized that presumed damages for constitutional torts "are appropriate when there is a great likelihood of injury coupled with great difficulty in proving damages."
The Second Circuit has endorsed the viability of the presumed damages doctrine for Fourth Amendment violations in Kerman v. City of New York, 374 F.3d 93 (2d Cir. 2004). In Kerman, the jury ruled for the plaintiff on claims for unlawful seizure and detention under the Fourth Amendment but refused to award compensatory damages. The court nonetheless ordered a new trial on damages, concluding that the plaintiff was entitled to presumed damages based on his "loss of liberty" for having been unlawfully detained. A "loss of liberty" is a harm caused by the deprivation of a constitutional right, but it is difficult to measure. This is exactly the type of harm that the presumed damages doctrine contemplates.
The Third Circuit in Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir. 2000), found that presumed damages were not available to the plaintiff. The plaintiff claimed his right to free exercise of religion was infringed on and claimed damages for mental or emotional injury. Since presumed damages flow from the harm caused by the infringement of one's constitutional rights, and are not based on mental or emotional injuries, the court held the plaintiff's claimed mental or emotional injuries could not form the basis for an award of presumed damages. A proper award for mental or emotional injuries would have been in the form of compensatory damages, but those damages were barred by statute. Even though the Third Circuit declined to make presumed damages available in Al-Hafeez, the court did not foreclose on the possibility that presumed damages could be awarded in future cases where a constitutional violation occurred.
When a constitutional violation occurs, attorneys should be cognizant of the potential availability of presumed damages. Despite the difficulty in recovering presumed damages and the often modest recovery when presumed damages are awarded, they are often the only damages available where a plaintiff has suffered no cognizable injury as a result of a constitutional violation.
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Presumed Damages May Be Available in Constitutional Torts
in [ 명예훼손,모욕 소송 ]

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