Section 1983 is designed to compensate and deter constitutional violations by state and local officials. The damages phase of a §1983 action may present a variety of challenging issues. The Tenth Circuit’s recent decision in Burke v. Regalado, 935 F.3d 960 (10th Cir. 2019) provides valuable analyses of several of these issues. The decision spans a whopping 104 pages in the Federal Reporter, and, in addition to damages, tackles numerous procedural, evidentiary, and liability issues.

This column focuses on three major damages issues from the Burke case: (1) the propriety of plaintiff’s counsel’s “send a message” closing argument; (2) awards of punitive damages against supervisory officials who were not directly involved in violations of the plaintiff’s constitutional rights; and (3) the “setoff” issue of whether a court should reduce the jury’s award of compensatory damages against nonsettling defendants by the amount of a settlement with one of the defendants.

Background