M.R.G. v. Marsh Harbour Maintenance Association, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 15, 2017
• Docket: 16-11248
• Status: Unpublished

Opinion

Case: 16-11248 Date Filed: 03/15/2017 Page: 1 of 73

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-11248 ________________________

D.C. Docket No. 9:14-cv-80667-RLR

FAIR HOUSING CENTER OF THE GREATER PALM BEACHES, INC.,

Plaintiff-Cross Claimant - Cross Defendant-Appellant,

M.R.G., By and through his parent, Meghan Gardner, LEANN CARR, A.M., By and through his parent, Golda Muselaire, N.N., By and through his Mother, Heather Abrams, JANET JACKSON, TA'JENAE WILLIAMS, J.G., By and through his parent, Meghan Gardner, BRENDA HILL-BLUNTSON, R.L., By and through his parent, Janet Jackson, MEGHAN GARDNER, Z.M., By and through his parent, Golda Muselaire, M.J.G., By and through his parent, Meghan Gardner, I.M., By and through his parent, Golda Muselaire, Case: 16-11248 Date Filed: 03/15/2017 Page: 2 of 73

GOLDA MUSELAIRE,

Plaintiffs-Appellants,

versus

SONOMA BAY COMMUNITY HOMEOWNERS ASSOCIATION, INC., a Florida non-profit corporation,

Defendant-Cross Defendant-Appellee,

MARSH HARBOUR MAINTENANCE ASSOCIATION, INC., a Florida corporation, PRESTIGE QUALITY MANAGEMENT, LLC, et al., KIMBERLY JACKSON, JAMES NYQUIST,

Defendants-Appellees,

JONATHAN MERRIGAN, individually, EMANUEL MANAGEMENT SERVICES, LLC, et al.,

Defendants,

JEANNE KULICK,

HI-TEK SECURITY SERVICES, INC.

Defendant-Cross Claimant-Cross Defendant.

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________________________

No. 16-16092 ________________________

M.R.G., By and through his parent, Meghan Gardner, LEANN CARR, A.M., By and through his parent, Golda Muselaire, N.N., By and through his Mother, Heather Abrams, JANET JACKSON, TA'JENAE WILLIAMS, J.G., By and through his parent, Meghan Gardner, BRENDA HILL-BLUNTSON, R.L., By and through his parent, Janet Jackson, MEGHAN GARDNER, Z.M., By and through her parent, Golda Muselaire, M.J.G., By and through his parent, Meghan Gardner, I.M., By and through his parent, Golda Muselaire, GOLDA MUSELAIRE,

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Plaintiffs-Appellants

SONOMA BAY COMMUNITY HOMEOWNERS ASSOCIATION, INC., a Florida non-profit corporation, et al.,

Defendants-Cross Defendants-Appellees,

EMANUEL MANAGEMENT SERVICES, LLC, JONATHAN MERRIGAN, individually, MARSH HARBOUR MAINTENANCE ASSOCIATION, INC., a Florida corporation, PRESTIGE QUALITY MANAGEMENT, LLC, et al.,

MARSH HARBOUR 1 CONDOMINIUM ASSOCIATION, INC. et al.,

Defendant-Cross Defendant,

HI-TEK SECURITY SERVICES, INC., a corporation organized under the laws of the State of Florida,

Appeals from the United States District Court for the Southern District of Florida ________________________

(March 15, 2017)

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Before HULL, MARTIN, and EBEL, * Circuit Judges.

HULL, Circuit Judge:

The plaintiffs are the Fair Housing Center of the Greater Palm Beaches, Inc.

(the “Center”) and a number of current or former residents of the Sonoma Bay and

Marsh Harbour condominium developments (collectively, the “Plaintiffs”). The

Plaintiffs filed this lawsuit against Sonoma Bay Community Homeowners

Association, Inc. (“Sonoma Bay HOA”), Marsh Harbour Maintenance Association,

Inc. (“Marsh Harbour HOA”) (together, the “Associations”), and other related

parties (collectively, the “Defendants”). The Plaintiffs claim that the Defendants

discriminated against families with children in violation of the Fair Housing Act

(“FHA”), 42 U.S.C. § 3601 et seq. Following a seven-day trial, a jury rendered a

verdict in favor of the Defendants.

The Plaintiffs appeal the district court’s denial of their motion for a new

trial, primarily challenging the verdict form and the district court’s refusal to give a

jury instruction the Plaintiffs requested. Because the Plaintiffs have not

demonstrated prejudicial and reversible error in the trial, we affirm.

* Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by designation. 5 Case: 16-11248 Date Filed: 03/15/2017 Page: 6 of 73

I. THE ASSOCIATIONS’ RULES AND PLAINTIFFS’ COMPLAINT

The Fair Housing Act prohibits discrimination against families with

children. See 42 U.S.C. § 3604 (prohibiting housing discrimination on the basis of

“familial status”); id. § 3602(k) (defining “familial status” as “one or more

individuals (who have not attained the age of 18 years) being domiciled with” a

parent or legal guardian).

The Plaintiffs’ operative complaint alleged familial status discrimination

under two different provisions of the FHA: §§ 3604 (b) and (c).1 Section 3604(b)

makes it unlawful “[t]o discriminate against any person in the terms, conditions, or

privileges of sale or rental of a dwelling, or in the provision of services or facilities

in connection therewith, because of . . . familial status.” Section 3604(c) makes it

unlawful to “make, print, or publish . . . any notice, statement, or advertisement,

with respect to the sale or rental of a dwelling that indicates any preference,

limitation, or discrimination based on . . . familial status.”

The Plaintiffs’ suit alleged the two Defendant Associations had four policies

that discriminated against families with children in violation of §§ 3604(b) and (c)

and the Florida Fair Housing Act, Fla. Stat. § 760.20 et seq. The parties refer to

these four policies as the “Curfew Rule,” the “Loitering Rule,” the “Proper Attire

1 The Plaintiffs originally brought but later dismissed § 3604(a) claims. 6 Case: 16-11248 Date Filed: 03/15/2017 Page: 7 of 73

Rule,” and the “Report Card Requirement” (collectively, the “Rules”). These

Rules state as follows:

• The Curfew Rule – “All persons under the age of 18 must be in their home or back patio after sunset.”2 • The Loitering Rule – “There will be no loitering—congregating on the streets of [the development] [—] at any time. After dark all children should be in their home or on their patio.” • The Proper Attire Rule – “All Residents must wear proper clothing when walking on the streets of [Sonoma Bay and Marsh Harbour]. No Boys should be shirtless and Girls must wear a cover up over a bathing suit when walking to the pool.” • The Report Card Requirement – Rental applications from prospective tenants must include copies of report cards for any person under the age of 18.

The Plaintiffs claimed that the Rules facially discriminated against children and

that the Defendants wrongfully enforced them against only families with children,

entitling the Plaintiffs to compensatory and punitive damages.

In 2014, Marsh Harbour amended its Curfew Rule and Report Card

Requirement. By the time trial began in October 2015, both Marsh Harbour and

Sonoma Bay had entirely eliminated the Loitering Rule, Curfew Rule, and Report

Card Requirement.

As recounted in great detail below, the trial evidence focused on whether,

during 2010 to 2015 (before the elimination of the Rules), the Defendants had

2 The record demonstrates that only the Marsh Harbour Rules and Regulations contained a separate Curfew Rule, while the Sonoma Bay Rules and Regulations stated, under the heading “Loitering,” that, “[a]fter dark all children should be in their home or on their patio.” 7 Case: 16-11248 Date Filed: 03/15/2017 Page: 8 of 73

enforced these Rules against only children, or against all residents, or at times

against no one at all.

Before reviewing the trial evidence, we first review a pre-trial ruling by the

district court, which the Plaintiffs claim affected their trial presentation.

II. PLAINTIFFS’ SUMMARY JUDGMENT MOTION

Before trial, the parties filed summary judgment motions. Of importance to

this appeal, the Plaintiffs filed a “Motion for Partial Summary Judgment as to

Defendants’ Liability Regarding Written Policies that Violate the Fair Housing

Act.” (Emphasis added). The Plaintiffs’ motion contended that partial summary

judgment was proper because “there are no genuine issues of material fact as to

whether Defendants maintained discriminatory written policies in violation of the

Fair Housing Act.” (Emphasis added). In their prayer for relief, the Plaintiffs

requested that the district court grant their “motion for partial summary judgment

as to liability.”

A. The Report Card Requirement and Proper Attire Rule

The district court denied the Plaintiffs’ motion as to both the Report Card

Requirement and the Proper Attire Rule. The district court observed that the rental

applications also required adults to submit to a background check, such that an

ordinary reader could conclude that “the same type of vetting is being applied to

both adults and children—a type of vetting related to the character of the

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applicant.” An ordinary reader could also conclude that the report card was used

as a means of identification. The district court concluded that “this issue must be

resolved by a trier of fact.”

The district court also noted that there was “sufficient ambiguity in the

meaning of the wording” of the Proper Attire Rule such that it was “unclear”

whether the Plaintiffs had established a “prima facie case of familial

discrimination.” The district court later stated that the language of the Proper

Attire Rule was “unclear” because, while one ordinary reader could conclude that

the Rule’s reference to “Boys” and “Girls” meant only male and female children,

another ordinary reader could conclude that the Rule encompassed all males and

all females. Therefore, the district court concluded that “this issue must be

B. The Loitering and Curfew Rules

When analyzing the text of the Loitering and Curfew Rules and § 3604(b),

the district court determined that:

Because [these Rules’ restrictions] are limited to children and because the rules treat children differently than adults—children are essentially confined to their home after dark—Plaintiffs have, at a minimum, established a prima facie case of intentional discrimination under § 3604(b). The burden therefore shifts to Defendants to articulate “a legitimate, non-discriminatory justification for the challenged policy.”

Based on the record evidence, the district court found that “the primary

motivations behind Defendants’ Loitering Rule and Curfew Rule were safety 9 Case: 16-11248 Date Filed: 03/15/2017 Page: 10 of 73

concerns and crime prevention[.]” The district court also noted, however, that the

Defendants did not provide evidence demonstrating that the children in the

communities had a propensity to commit criminal acts or that the children’s

parents were incapable of supervising their outside activities.

The district court also found that, even if these justifications for the

Loitering and Curfew Rules were satisfactory, “[t]he plain text of the rules

confines children to their home for the duration of the night.” The district court

determined that “there is no reasonable, alternative reading other than (i) the rules

only affect children and (ii) children are treated differently than adults. The

content of the rules is such that an ordinary reader would clearly conclude that the

rules discriminate against children.”

Although the district court determined that the “plain text” of the Rules was

discriminatory, the district court observed that the Defendants provided evidence

that the Rules were not enforced against the Plaintiffs, and that the Plaintiffs’

motion sought no adjudication as to the disputed issue of enforcement or as to the

damages, stating:

Although Defendants have provided evidence that the Loitering Rule and Curfew Rule were not enforced, this evidence goes to damages and not to liability. Plaintiffs seek no adjudication with respect to the manner in which Defendants enforced their Rules and Regulations or the damages those rules caused.

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Simply put, the district court granted the Motion for Partial Summary Judgment as

to the Plaintiffs’ claim that the plain text of the Loitering and Curfew Rules

violated §§ 3604(b) and (c). Accordingly, the trial then focused on (1) whether the

Defendants enforced these written Rules against only children, against all

residents, or often against no one at all, and (2) if the Defendants enforced the

written Rules against only children, whether the Defendants’ discriminatory

enforcement caused damages. Because the wealth of evidence that the Plaintiffs

presented is critical to the issue of prejudice in this appeal, we recount the relevant

testimony adduced at trial.3

III. PLAINTIFFS’ EVIDENCE AT TRIAL

We start with the testimony of current and former residents of Sonoma Bay

and Marsh Harbour.

A. Testimony From Resident Bluntson

Since March 2011, Brenda Hill Bluntson has been a Sonoma Bay resident.

She has four adult children and ten grandchildren who would come visit her at

Sonoma Bay. Bluntson testified that, shortly after she moved in, the Loitering

Rule was enforced against her family. For example, her grandchildren went

outside to “stretch and play ball and run and so forth.” All of the adults went 3 We do not recount here every detail of the evidence presented at trial nor every witness presented. For example, the Plaintiffs also presented testimony from two Fair Housing Center executives regarding the Center’s investigation of Sonoma Bay and Marsh Harbour and supporting the Center’s claim for damages for diversion of resources and frustration of mission. But we do recount the trial evidence about enforcement and damages, or lack thereof. 11 Case: 16-11248 Date Filed: 03/15/2017 Page: 12 of 73

outside as well. A security guard told them “they had to go in the back.” The

guards were “addressing the grandchildren definitely, [saying] they couldn’t play

out front where we were trying to play, and [they told the] adults, you can’t stand

out.” Bluntson said it made her feel “uncomfortable” and “angry.” Since that

incident, Bluntson has not allowed her grandchildren to go outside. On cross-

examination, however, Bluntson acknowledged that, with respect to the incident,

her grandchildren were playing ball in the street and the security guards asked

them to get out of the street.

Bluntson also admitted that, on a separate occasion, her adult husband and

adult children were sitting on a car, “[l]aughing and carrying on,” and the security

guards told these adults to go inside or go in the back.

Bluntson also testified that, in 2013, the president of the Sonoma Bay Board

of Directors, Jeanne Kulick, sent a security guard to kick her large family out of

the pool area. Bluntson went to confront Kulick, and Kulick told her that “you

have too many people in the pool, and playing ball in the pool and there is a

complaint, and your family has on street clothes in the pool.” Bluntson related that

her adult daughter had on a white T-shirt over her swim suit while in the pool.

Bluntson said the incident at the pool made her feel “hurt” and “uncomfortable.”

She said that, shortly thereafter, she received numerous violation notices in

“retaliation.”

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Bluntson said the Loitering and Curfew Rules had interfered with the

enjoyment of her home. Her grandchildren come over less because “they get tired

of having to be in the house, cooped up all the time.” If Bluntson could afford to

move, she would do so.

B. Testimony From Resident Jackson

Janet Jackson purchased a condo at Sonoma Bay pre-construction which she

occupied in 2011 or 2012. Jackson testified that, on an unspecified date, Jackson’s

minor son, Richard, ran across the street to greet a friend. While they were talking,

Kulick drove up and “asked what they were doing out there.” Kulick told the

children “to go in the house and play video games.” Jackson then told her son to

go inside because she “didn’t want no problems.” Her son Richard was upset and

could not understand why he could not play outside. Jackson never observed the

security guards at Sonoma Bay tell an adult to go inside, but she did observe them

telling children to go inside. Jackson moved out of Sonoma Bay the weekend

before trial. On cross-examination, Jackson admitted that Richard would play

tennis at Sonoma Bay, play kickball in front of her house, and ride bikes and play

with his friends around the neighborhood.

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C. Testimony From Resident Carr

From April 2012 until April 2015, Leann Carr was a resident at Sonoma

Bay. She lived with her teenage grandson, Nathan, whom she had raised since

birth.

In early 2013, Carr received her first violation notice after Nathan and his

friends “had been out on a weekend night, early in the morning, in our driveway

sitting in his car with the windows rolled up listening to music.” Carr and Nathan

went to speak with Kulick about the notice. Kulick told them “children aren’t

supposed to be out after sunset.” The confrontation escalated until Kulick retreated

to her office. Kulick then came back out with a copy of the rules and regulations,

and went over the rules with Carr and Nathan. According to Carr, “she read me

every rule and regulation, and after each one she would say, do you understand,

and I said yes.” This made Carr feel like she “was a 12 year old.” Carr said that

Kulick spoke to her “like I was one of her students . . . like one, two, three, you are

going to do it this way or not at all.” The confrontation left Carr feeling

“humiliated [and] embarrassed.”

In November 2013, Carr received another violation notice when Nathan was

making too much noise while skateboarding. Carr admitted that she took the

notice to Sonoma Bay’s then-property manager, Niambi Emanuel, who told her

that it was a courtesy notice and that she should disregard it. Carr said children at

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Sonoma Bay were “alienated” from other children. Parents would try to keep their

kids inside, but, “kids being kids, they would climb out their windows to go to

each others’ rooms, that is how they visited each other.”

Carr said the Rules affected her relationship with Nathan: “It caused a lot of

arguments between us that we never had. He had a very structured life and he

would start questioning my rules . . . . [H]e respected authority, but when authority

keeps brow beating you, I could see that [respect for authority] lessening and

lessening in him.” According to Carr, Nathan became so “upset” by living at

Sonoma Bay that in November 2014 he went to live with his mother. She said that

Nathan “was afraid he was putting so much stress on [Carr] and he didn’t want

[Carr] to get evicted and he was beat down with rules and regulations that he could

not do nothing, and he was a teenage boy, he wanted to have his friends over and

go out and do things.” Carr said Nathan was currently living with his mother and

had dropped out of both high school and the ROTC. Carr said that Nathan’s

situation made her feel “horrible” because “he doesn’t have a home.”

On cross-examination, Carr admitted that Nathan’s mother regained custody

of him in 2013 and that Carr had unsuccessfully fought for custody. In

contradiction to her trial testimony, Carr also stated in her deposition that she was

concerned about crime in the neighborhood. The first year Carr lived at Sonoma

Bay, she had a 500-pound safe stolen from her garage. Carr also admitted that

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Nathan was once stopped by a community security guard and was accused of

cursing at the guard. Defendants’ counsel asked if she was aware that Nathan had

been in “dozens of fist fights.” Carr said she was not. Counsel also produced a

document showing that Carr received the first notice of violation not just for

Nathan’s loitering but also for Carr’s own loud argument with a neighbor.

D. Testimony From Resident Golda Muselaire

From 2014 to 2015, Golda Muselaire lived in Marsh Harbour with her

husband and three children. Muselaire testified that the Rules were enforced

against her family. For example, a security guard once reprimanded one of her

children for riding his bike in the street. Her children could play outside if they

were supervised by an adult, but this “aggravated” her because she wanted to rest

while her kids played outside. Muselaire said the Rules forced her to be “really,

really on [her children], I didn’t want them to break any rules and the security

guards harass them.” Muselaire said this made her feel like she was “hovering

over them, [like] they can’t breathe.” Muselaire said the Rules also affected her

children—they started to rebel and sneak out to play. Her family moved because

the private owner of their unit raised the rent.

E. Testimony From Resident Isaiah Muselaire

Golda Muselaire’s son, Isaiah Muselaire (age 15) testified that he had the

Loitering and Curfew Rules enforced against him “multiple times” when his family

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lived at Marsh Harbour from 2014 to 2015. For example, Isaiah and his friends

were once playing football when a security guard told them that, if they did not get

on the sidewalk, he would give them a violation. Another time, Isaiah and a friend

were sitting on a green electrical box when the security guard gave the friend a

violation and Isaiah a verbal warning. 4 Isaiah also recounted one time when he

and some other kids were in the “park up front by the clubhouse” and the security

guard “told us to go inside because it was getting late, it was past the curfew, and

he didn’t say nothing to the adults [who were also outside].”

Isaiah would hide in a tree to talk to his friends “because if we even talk on

the sidewalk or by the grass, [a security guard] would harass us, like why are you

loitering.” Isaiah said being stopped so often by the security guards made him feel

“depressed and ma[d]e [him] want to rebel more.” After his mother learned of the

altercations with the security guards, she made her kids stay inside to avoid getting

“kicked out,” but this dictate made Isaiah “feel like [he] was in jail.” Isaiah said

the Rules made his mom “overwhelmed and frustrated” because she “wanted her

space.”

On cross-examination, Isaiah admitted that, while living at Marsh Harbour,

he would play football on the street with his friends, swim at the pool, play in the

grassy areas, and ride bikes or skateboards in the street.

4 The Marsh Harbour Loitering Rule specifically prohibited sitting on the electrical boxes in the neighborhood. 17 Case: 16-11248 Date Filed: 03/15/2017 Page: 18 of 73

F. Testimony From Resident Gardner

Meghan Gardner is the mother of six children. From 2014 to 2015, she lived

at Marsh Harbour. Gardner alleged that James Nyquist, who was at one point the

Marsh Harbour property manager, told her that the Report Card Requirement was

in place to find out “if the kids go to alternative schools . . . and he was trying to

clean up the neighborhood.” Nyquist also allegedly told her that six violation

notices would lead to eviction.

Gardner testified that the Rules were enforced against her family. For

example, one time, two of her sons were riding their bikes, and the security guard

told them to go on the sidewalk. Another time, her kids were on the driveway, and

the guard told them they could not play outside. Gardner said these incidents made

her feel “hurt, sad and embarrassed.” Gardner testified that the Curfew Rule was

enforced against her children five or six times. Gardner received six violation

notices while living at Marsh Harbour, including one for an infraction of the

Loitering Rule. Gardner was afraid of eviction “[a]ll of the time” because she had

six citations and “there were so many rules, it was always harassing the kids.”

Gardner said her kids were “always crying to me and tell[ing] me they feel like

they are in jail. They want to go outside and ride their bikes, they want to be kids,

they want to have fun, they want to go in the driveway and play without being

harassed by security guards or HOA.”

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G. Testimony From Resident Williams

Ta’Jenae Williams, Gardner’s daughter, was 17 when her family lived at

Marsh Harbour. Williams said that her family received the Rules at their

orientation with Nyquist. Williams said the Curfew Rule was enforced against her

“plenty of times . . . too [many] to count.” For example, on the night she turned

18, Williams went out with friends, but the security guard would not let her

through the gate without an ID. Williams would often do her homework on the

patio, and a security guard once told her to go inside. This made her feel

“extremely upset, uncomfortable, awful.”

Williams testified that the Loitering Rule was enforced against her when she

and her brother went bike riding with a friend. The chain on the friend’s bike

broke at a location with no sidewalks. When the security guard saw the children in

the streets, he threated the friend with a fine. “After that, we couldn’t go outside

no more.” Williams said living at Marsh Harbour made her feel “[h]orrible, guilty,

depressed, angry.” She could not decorate a float in her front yard. Williams was

on the track team and could not run around the neighborhood. She felt angry that

her siblings could not play outside, and she felt guilty for leading her mom to

Marsh Harbour in the first place.

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H. Testimony From Residents Jermaine and Marcell Griffin

Jermaine Griffin (age 16) testified. He is Gardner’s son and Williams’s

brother. Jermaine did not like living at Marsh Harbour because he was “stuck

inside most of the time, and when [he] was allowed outside, [he] was told by

someone what [he] can and what [he] can’t do.” One time, Jermaine was walking

home from the school bus when Kimberly Jackson, the property manager at Marsh

Harbour, asked him what he was doing and rudely told him he better get where he

was going. Jermaine also said a security guard once told him and his sister to ride

their bicycles on sidewalks only. He testified that the Curfew Rule was enforced

against him once when he was walking to a friend’s house; a security guard told

him he was out past curfew and had to go home. On cross-examination, Jermaine

admitted that he would play in his driveway and on the sidewalk. Jermaine also

admitted to sneaking out of his house and getting stopped by a security guard and

also by the police.

Marcell Griffin (age 12), another of Gardner’s sons, testified. said he did

not like living at Marsh Harbour because he “couldn’t be a kid.” Marcell was once

riding his bike on the sidewalk, but the sidewalk ended. Security told him to get

back on the sidewalk, “so I didn’t bother, so I went back home.” This made him

“sad, angry and bored because I was used to riding my bike in the neighborhood,

and now I have to stay inside and be bored.” Marcell also said that one time he

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was bouncing a ball in front of his house when the ball rolled into the street.

Security told him to take the ball inside. After that day, he says he never went

back outside.

The Plaintiffs also called three property managers: James Nyquist, Niambi

Emanuel, and Kimberly Jackson.

I. Testimony from Property Manager Nyquist

James Nyquist was the property manager5 at Sonoma Bay from early 2010

until mid-2012, and he was also the property manager at Marsh Harbour from early

2010 until mid-2013. In his role as property manager, Nyquist considered himself

an agent of the Associations and reported to each community’s Board of Directors.

The Boards made the ultimate decision about what community rules to adopt,

although Nyquist could review, comment, and advise on those rules. Nyquist

reviewed the rules and regulations with new tenants at an orientation once their

application was approved.

In April 2010, the resident Associations took over control of the properties

from the developer and put in place a “simplified” screening process—checking

credit scores, income, and criminal records. As property manager, Nyquist was in

charge of assembling a complete tenant application package and submitting it to

5 All of the property managers were Community Association Managers (“CAMs”), a position created by Florida law requiring certification and continuing education. 21 Case: 16-11248 Date Filed: 03/15/2017 Page: 22 of 73

the Board for approval. Nyquist had no power to approve or reject tenant

applications.

According to Nyquist, the Report Card Requirement was put in place

(1) because some parents did not have birth certificates for their children and (2) to

discourage applicants from lying about whether certain occupants were children in

order to avoid the criminal record check. Nyquist testified that the report card was

a stand-in for other age identifiers, such as a birth certificate, because the child’s

school level gave a rough idea of the child’s age. Nyquist also testified that the

Board did not look at the child’s grades when determining whether to approve an

application.

According to Nyquist, Kulick, the president of the Sonoma Bay Board, came

up with many of the Rules at issue here.6 Nyquist then imported the Rules to

Marsh Harbour. The properties enacted the Loitering and Curfew Rules because

“they had a lot of issues with cleaning up the community.” Nyquist stated that

“every single day there were three to five break-ins.” Nyquist personally observed

people climbing the perimeter fence and the pool fence and causing damage.

Nyquist would tour the property, he would “see kids hiding behind the building,

vacant units, and you go back later in the day and the door is busted open and the

6 Nyquist testified that, prior to implementing the Curfew Rule at either property, he was aware that the City of Riviera Beach, Florida (where the properties were located) had an ordinance mandating a curfew for young people. Nyquist admitted that the Riviera Beach ordinance, unlike the Curfew Rules, gave very specific curfew times. 22 Case: 16-11248 Date Filed: 03/15/2017 Page: 23 of 73

glass is all shattered.” So, according to Nyquist, the Board “was taking action not

to try and stop people from being outside necessarily, it was to stop the crime in

the community. The point of the rule was so that we would stop having people

hide and breaking into units.” Additionally, the Loitering Rule prohibited playing

in the street because cars would speed down the neighborhood’s streets, which was

a safety hazard for children.

Nyquist testified that the two properties enforced the Loitering and Curfew

Rules against both children and adults and neither Rule was strictly enforced. The

Rules were enforced first through a verbal communication, followed by “courtesy

notices,” followed by “violation letters if we have a continued problem.” Nyquist

did not issue notices of violation for people who were walking, jogging, or riding a

bike. As for the Curfew Rule, security guards were encouraged to escort kids

home at night for their safety, but they were “told not to bother people, it was only

if there was a problem, the hiding situation.”

According to Nyquist, the properties never rejected a prospective renter

because they had children, never failed to renew a lease based on familial status,

never evicted a tenant based on familial status, and never evicted, threatened to

evict, or failed to renew a lease for violations of the Rules.

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J. Testimony From Property Manager Emanuel

Niambi Emanuel was originally Nyquist’s assistant. When Nyquist left

Sonoma Bay in July 2012, Emanuel and her company, Emanuel Management

Services, took over as property manager. Like Nyquist before her, Emanuel

reported to the Sonoma Bay Board, but she did not serve on the Board and did not

have a vote on the Board. In March 2014, President Kulick fired Emanuel as

property manager.

In spite of her “concerns” about the Report Card requirement, Emanuel

gathered report cards from prospective tenants throughout her tenure at Sonoma

Bay. Kulick was on the committee that screened applications. According to

Emanuel, Kulick would review the report cards submitted with applications to see

if the children had good grades and behavior. On certain occasions, Kulick would

tell a parent that their child’s grades were “not good,” and the parent should “get

some help for the student.” To Emanuel’s knowledge, Kulick did this to help the

children. Kulick instituted an after-school tutoring program for children in the

community, and Kulick would turn over the report cards to them.

As part of her job duties, Emanuel would send out notices of violation to

residents. While an assistant to Mr. Nyquist (in 2011) until she left Sonoma Bay in

March 2014, Emanuel issued approximately 20 notices per month, typically for

violations of the rules concerning trash and clutter on patios.

24 Case: 16-11248 Date Filed: 03/15/2017 Page: 25 of 73

According to Emanuel, the reason for the Loitering and Curfew Rules was

community safety. If Emanuel observed children playing outside at night, she

would simply tell them to move to a grassy area or behind their home. Emanuel

never told children playing in the community that they could not play outside or

that they must go inside. She never personally enforced the Curfew Rule.

K. Testimony from Property Manager Jackson

Kimberly Jackson, the property manager at Marsh Harbour who succeeded

Nyquist, also testified. Jackson worked through defendant Prestige Quality

Management, LLC, the entity that contracted with the Marsh Harbour HOA for her

services. According to the contract, she would handle and enforce any violations

of the community rules and regulations on behalf of the Board of Directors.

Like Nyquist before her, Jackson was in charge of facilitating rental

applications at Marsh Harbour. Jackson would collect the information from

prospective tenants and submit their applications to Patricia Makarowa, the

President of the Marsh Harbour HOA. Makarowa and/or Jackson would then

determine whether to approve the applications. Until shortly before trial, Marsh

Harbour collected report cards from prospective tenant families. Jackson

explained that the report card “gives you an idea of the [child’s] age because it lists

the grade.” Marsh Harbour never looked at grades or behavior when reviewing an

25 Case: 16-11248 Date Filed: 03/15/2017 Page: 26 of 73

Jackson would conduct orientation with new tenants, where she would

explain the rules, but she stressed that the tenants “would have . . . signed off on

the rules prior to the orientation.”

Jackson testified that enforcement of the Loitering and Curfew Rules was

“very lax.” 7 Jackson said, “There was no real enforcement of the loitering issue

other than a verbal warning about the dangers of playing football in the street or if

someone was in the community that was not supposed to be there.” As to the

Curfew Rule, “[t]here is no enforcement.” Marsh Harbour did not instruct the

guards to tell children not to play outside and never instructed the guards to target

children. Jackson never personally told a child to go home and never heard of

anyone telling a child to go home. Jackson said the Loitering Rule was enforced

against adults and children. Jackson also insisted that the Proper Attire Rule was

always enforced against all residents.

Jackson testified that Marsh Harbour had never denied an application

because the applicant had children, never evicted a resident based on familial

status, never fined a resident for a Rules violation, never evicted or threatened to

7 While there was evidence that Marsh Harbour terminated one family’s lease based, in part, on violation of the Loitering Rule, Jackson explained that this particular family was evicted due to numerous serious incidents and “nuisance behavior,” including one incident when the two young children were spotted near a snake and alligator-infested lake unsupervised, an incident when the police and the state Department of Children and Families were called, and another incident where the child vandalized property. 26 Case: 16-11248 Date Filed: 03/15/2017 Page: 27 of 73

evict a resident for a Rules violation, and never failed to renew a lease based on a

Rules violation.

IV. DEFENDANTS’ EVIDENCE AT TRIAL

Although the Plaintiffs had called property managers Nyquist, Emanuel, and

Jackson as witnesses during their own case in chief, the Defendants had previewed

their defense during cross-examination of those witnesses. During that cross-

examination, these witnesses had already testified that the security guards and

property managers enforced these Rules against both adults and children and that

often the Rules were not strictly enforced.

After the Plaintiffs rested, the Defendants also presented testimony from

Patricia Makarowa, the President of the Marsh Harbour Board. Makarowa testified

that Marsh Harbour put the Rules in place in 2011 based on those implemented at

Sonoma Bay.

The Defendants also called Kulick, who similarly denied that the Rules were

enforced against only families with children. In 2002, Kulick and her husband

moved to Florida. A retired teacher, Kulick got her realtor’s license in 2005.

Kulick purchased a property at Sonoma Bay in 2005, but she does not live there.

In April 2010, Kulick became the Sonoma Bay Board president. By that time, her

Sonoma Bay property had depreciated in value from $215,000 or $225,000 to

$26,000.

27 Case: 16-11248 Date Filed: 03/15/2017 Page: 28 of 73

In 2005 and 2006, Sonoma Bay was in a dilapidated condition—holes in the

fences, dead plants, overflowing dumpsters inhabited by rats, mice, and vermin.

Kulick saw drug paraphernalia and spark plugs (used to smash sliding glass doors)

littering the property. Kulick also saw “[g]rown people . . . gambling on the

electrical boxes. Adults were playing football in the street, scratching cars, didn’t

matter where the ball went.” Kulick testified that crime was a problem, with

people squatting in vacant units or using vacant units for drugs and sex. In 2010,

Sonoma Bay had more than $200,000 worth of code violations.

Kulick made it her mission to clean up the community and resurrect property

values. Kulick met with city officials and law enforcement officers. She had a

manned guard gate installed, hired a security company, and instituted a new tenant

application process.

Kulick insisted that the reason for the Report Card Requirement was to

gauge the child’s age. Sonoma Bay never rejected an applicant because of a

child’s bad grades or behavior or because the applicant was a single parent.

Kulick’s version of the enforcement of the Loitering and Curfew Rules was

quite different from that of the Plaintiff residents. Under Kulick’s watch, the

Sonoma Bay Board implemented the Loitering Rule. Kulick explained that the

Loitering Rule was meant to address adults gambling on the electrical boxes and

drinking on the hood of their car “in order to watch you leave for work so they

28 Case: 16-11248 Date Filed: 03/15/2017 Page: 29 of 73

could rob [your home] five seconds after you are gone.” Kulick never told

children they could not play outside and was not aware of anyone telling children

they could not play outside. Kulick specifically denied telling a child to “go inside

and play video games.”

Kulick instituted a tutoring program for children at Sonoma Bay. Plaintiff

Janet Jackson gave tennis lesson to the kids who were in tutoring. In 2010 and

2011, Sonoma Bay offered basketball clinics for children.

Kulick testified that the Sonoma Bay HOA (1) never targeted or attempted

to “weed out” families with children; (2) a prospective tenant was never rejected

based on familial status; and (3) no tenant was ever evicted or had their lease non-

renewed based on familial status.

Kulick stated that Sonoma Bay had “done what was impossible. We took a

community in distress and brought it back to life. We enabled people to feel safe.”

According to Kulick, Sonoma Bay’s occupancy rate went from 30 to 90 percent

and property values rose 300 percent.

The Defendants’ evidence also stressed that the majority of residents were

families with children and that there was no evidence that anyone was ever denied

an apartment or evicted because they had children. For example, the trial evidence

showed that, out of the 302 units at Sonoma Bay, 70 to 80 percent of those

29 Case: 16-11248 Date Filed: 03/15/2017 Page: 30 of 73

consisted of families with children, and of the 402 units at Marsh Harbour, 75

percent consisted of families with children.

After the Defendants rested, the Plaintiffs re-called Janet Jackson to testify

in rebuttal. Jackson admitted that she was aware of the tutoring program and that

she gave tennis lessons to children at Sonoma Bay “so they won’t be harassed by

security.” She denied ever discussing the tutoring program with Kulick. The

Plaintiffs presented no other rebuttal testimony.

V. THE JURY INSTRUCTIONS

Because this appeal concerns one particular jury instruction, we now review

in detail what occurred about that.

Twice the district court refused the Plaintiffs’ request to charge the jury that

the Defendants had already been held “liable” as a matter of law and the only issue

for the jury was the amount of damages to award. The first time occurred before

opening statements. Five days before trial, the Plaintiffs filed the following

proposed preliminary jury instruction and asked the district court to tell the jury

that the only issue was monetary damages, as follows:

Prior to this trial the Court has made the following legal rulings: (1) the Sonoma Bay Curfew Rule violates the Fair Housing laws as a matter of law; (2) the Sonoma Bay Loitering Rule violates the Fair Housing laws a matter of law; (3) the Marsh Harbor (sic) Curfew Rule violates the Fair Housing laws as a matter of law; and (4) the Marsh Harbor (sic) Loitering Rule violates the Fair Housing laws as a matter of law. (citing to the district court’s summary judgment order)

30 Case: 16-11248 Date Filed: 03/15/2017 Page: 31 of 73

With respect to these four Rules, the Sonoma Bay Curfew Rule, the Sonoma Bay Loitering Rule, the Marsh Harbor (sic) Curfew Rule, and the Marsh Harbor (sic) Loitering Rule, you the jury do not have to determine whether or not these Rules are unlawful, because the Court already has. The Court has determined that these Rules violate the federal and state fair housing laws. Because of this finding by the Court, you the jury need only determine the monetary damages to the Fair Housing Center and Plaintiffs that should be awarded to fully remedy the effects of these illegal practices. (Emphasis added).

At the start of the trial and before opening statements, the district court declined to

give this jury instruction.

Again at the end of the trial, and during the October 21 charge conference

before closing statements, the district court denied a similar request. This time, the

Plaintiffs asked the court to charge the jury that: “Plaintiffs, at a minimum, have

established a prima facie case of intentional discrimination with the restrictions

placed on children regarding the Loitering and Curfew Rules at Sonoma Bay and

Marsh Harbour.” The Plaintiffs asked for this charge because the district court’s

order had said the “plain text” of those two Rules discriminates against children

and established a prima facie case.

During the charge conference, the district court stated that, with respect to

where the Court was going to address its previous ruling, it “might have a better

answer or thought on it once I look at the verdict form.” Plaintiffs’ counsel

responded that, “If we address them in the verdict forms, that is fine.” (Emphasis

added).

31 Case: 16-11248 Date Filed: 03/15/2017 Page: 32 of 73

On that same day, October 21, the Plaintiffs filed a proposed verdict form

that would state that the court had already found the Defendants “liable,” as

follows:

1. The Court has previously found Defendant [Sonoma Bay HOA] liable for violations under the Fair Housing Act with respect to the Curfew Rule and Loitering Rule. Do you find that the Defendant [Sonoma Bay HOA] is liable to Plaintiff . . . for any other violations of the Fair Housing Act?

2. The Court has previously found Defendant [Marsh Harbour HOA] liable for violations under the Fair Housing Act with respect to the Curfew Rule and Loitering Rule. Do you find that the Defendant [Marsh Harbour HOA] is liable to Plaintiff . . . for any other violations of the Fair Housing Act?

Defense counsel objected to the “liable” language in this verdict form,

arguing that, “you haven’t found us liable. Liable suggests that there is damages to

be awarded. I don’t think Your Honor found any damages should be awarded or

proven to be awarded or suggesting that damages should be awarded. I think the

word liable would suggest to this jury that Your Honor is basically telling them to

award damages.”

Working off of the Plaintiffs’ proposed verdict form, the following exchange

then occurred between the court and both parties’ counsel:

The Court: It probably is a more accurate statement to say the Court has previously found that – the formal title of the rules and regulations that relate to the curfew rule and loitering rule – violate the Fair Housing Act.

32 Case: 16-11248 Date Filed: 03/15/2017 Page: 33 of 73

Defense Counsel: I have been waiting my turn, I do want to speak on that issue. I think that is fairer, I clearly don’t like the word liable. The way I read your order, as Your Honor wrote it, the Plaintiff still has to prove damages for there to be liability.

The Court: You[] are correct on that. Does Plaintiff disagree? That is a correct statement.

Plaintiff Counsel: Sure, we are not saying the Court is determining damages.

The Court: The question is, how do we correctly state that?

Plaintiff Counsel: We are comfortable with what you said. The reason why we used that language, it was used in the District Court . . . Our preference would be the liable language, that is what was done in the district, but we’ll accept the language you propose.

Defense Counsel: Any verdict form of Your Honor’s finding unduly prejudices my client or puts emphasis –

The Court: You already made that argument known, the Court overruled that argument. The Court is going to address it in the verdict form in a way that it is not prejudicial, but an accurate statement of the law. The Court has taken it out as a second reference on page two, but the Court is going to mention it. It is not unusual when Courts have made findings that go to what the jury has to address, and so that is why I said I was going to wait for the verdict form so I know the context in which this issue is being raised. I have taken it out of the jury instructions, but we do know that there is a finding that -- on one or two of the rules the Court has made a finding. The jury has to make a determination whether there are any other violations they find, yes or no, and what compensatory damages. If there is no mention of it, and the jury is asked do you find the Defendant Marsh Harbour is liable to [Plaintiff] and they say no without ever knowing that there is a finding that two of the rules of Marsh Harbour have been found as a matter of law to violate the Fair Housing Act, I don’t think that is an accurate outcome either. The Court is attempting to do it in a non-prejudicial

33 Case: 16-11248 Date Filed: 03/15/2017 Page: 34 of 73

accurate way. I will hear you on any proposed language given that the Court is going to address it. ....

Defense Counsel: I think what Your Honor found, not in the enforcement, Your Honor found that in the wording of the document there was a violation of the Fair Housing law. There are two aspects being brought in this case, one is with regard to the wording, and one with regard to the enforcement. I don’t believe, I could be wrong, but Your Honor meant to find our clients in the enforcement breached it. I think you had -- facially.

The Court: Facially, yes. Do you have proposed language? . . . [T]he Court has accepted your position with respect to liability. So, do you have proposed language?

Defense Counsel: I don’t have proposed language but the concept -- the Court found the language on its face violates the Fair Housing law. I actually think that is what you found, and I think Your Honor left open for the jury to decide whether there is liability, but that is what I think Your Honor said. I would ask Your Honor to use that language. Your Honor ruled, I am accepting it, but to use that language as relates to this so we can argue, irrespective of what is on the document, there is not a violation. I think that is the argument to be made for the jury. Facially, on its face, those are Your Honor’s words. ....

Plaintiff Counsel: I read your order several times and I don’t remember it being in there at all. This is ironic concerning the positions you have been hearing the last few days. One reason we drafted it this way, we thought they would agree to it because we thought we were accommodating the concerns they made. You have taken it out of the jury instruction and taking out the liable language, and adding on its face could be confusing to the jury and a term of art. I think we should be moving on.

The Court: Well, I am not going to keep the language liable.

Plaintiff Counsel: No, I understand that. 34 Case: 16-11248 Date Filed: 03/15/2017 Page: 35 of 73

The Court: I am going to work on the language, but it will be something along the lines of the Court has found that the rules and regulations -- and again, it will be the formal title -- we'll say for discussion purposes, that relate to the curfew rule and the loitering rule, it might be something along the lines, the Court has found the language of the rules and regulations relating to the curfew rule and loitering rule violate the Fair Housing Act.

(Emphasis added).

The district court determined that it would use the Plaintiffs’ proposed

verdict form, “with the change in the language, with respect to the Court has found

the language of the rules and regulations . . . relating to the curfew rule [and] the

loitering rule violates FHA[.]” The district court directed the Plaintiffs to amend

the verdict forms accordingly and disseminate them to all parties. The next

morning, before the court’s final jury instructions and closing arguments, all

parties had copies of the final jury instructions and verdict forms.

The final verdict forms 8 explained that the language of the Loitering and

Curfew Rules violated the FHA, but left it to the jury to decide if the Defendants

had enforced the Rules and were liable to the Plaintiffs. The verdict forms stated:

1. The Court has found that the language of the Loitering section of the Sonoma Bay Rules and Regulations violates the Fair Housing Act. Do you find that the Defendant [Sonoma Bay HOA] is liable to Plaintiff . . . for that violation and/or any other violations of the Fair Housing Act?

8 There were verdict forms for each plaintiff containing basically identical language. 35 Case: 16-11248 Date Filed: 03/15/2017 Page: 36 of 73

2. The Court has found that the language of the Loitering and Curfew sections of the Marsh Harbour Rules and Regulations violates the Fair Housing Act. Do you find that the Defendant [Marsh Harbour HOA] is liable to Plaintiff . . . for that violation and/or any other violations of the Fair Housing Act?

In other words, the text or content violated the FHA, but the parties hotly disputed

whether the Defendants had enforced these Rules against all residents, not just

children. The jury returned verdicts in favor of all Defendants and awarded the

Plaintiffs no damages.

VI. DISTRICT COURT’S OMNIBUS ORDER

Following the jury’s verdict, the Plaintiffs filed numerous post-trial motions,

which the district court resolved in an omnibus order. district court’s omnibus

order pointed out that, “In that [earlier partial summary judgment] order, the Court

held that only a trier of fact could determine whether Defendants’ Report Card

Requirement and Proper Attire Rule violated the Fair Housing Act.”

As to the Loitering and Curfew Rules, the district court’s omnibus order

explained that the district court’s earlier order had found the text of the Rules

violated the Act but had “left the ultimate determination of liability and damages”

to the jury, stating:

The Court did find, however, that the text of the Curfew Rule and the Loitering Rule violated the Fair Housing Act. Notwithstanding the Court’s conclusion that the text of those rules violated the Fair Housing Act, the Court left the ultimate determination of liability and damages to the trier of fact.

36 Case: 16-11248 Date Filed: 03/15/2017 Page: 37 of 73

The district court’s omnibus order recapped how the Plaintiffs argued at trial

that the district court’s earlier ruling meant that the jury had to determine only

damages as to the Loitering and Curfew Rules. This, according to the district

court, was a mistake: “While the Court had previously held that the text of [those

two Rules] did violate the FHA, this violation is not equivalent to a finding of

liability under the FHA.”

The district court’s omnibus order further explained that the sentence from

its earlier order that the Defendants’ evidence of enforcement went to “damages

and not to liability” “did not signal that Defendants were liable—as reiterated by

the Court at trial. Instead, this sentence (when properly viewed in context) merely

disregarded Defendants’ arguments as inapplicable in the context of whether or not

the Loitering Rule and Curfew Rule—in the abstract—violated the FHA. The

Court’s ruling was very narrow and was limited to the text of the rules and not to a

finding of liability.”

The district court’s omnibus order also explained why its earlier order did

not directly entitle the Plaintiffs to relief:

The Center’s position and apparent confusion in this matter stems from a certain disconnect in its motion for partial summary judgment. While the argument in the Center’s motion focused on whether the text of Defendants’ rules violated the FHA, the Center’s prayer for relief sought a determination of liability. The disconnect, then, was causation. Implicit in the Center’s reasoning was (i) if a rule violates the FHA, and (ii) the rule was published by the Defendant, then (iii) the publishing Defendant is liable to a fair 37 Case: 16-11248 Date Filed: 03/15/2017 Page: 38 of 73

housing center. Not so. The statute governing remedies under the FHA merely states that certain remedies “may” flow from a violation and, moreover, case law establishes . . . that the existence of a rule that violates the FHA is not, by itself and without more, sufficient to impose liability.

While there were no disputed material facts at summary judgment as to whether Defendants’ rules were published, there was a dispute of material fact as to what impact those rules had on Plaintiffs and on the community as a whole. Indeed, Defendants’ enforcement of the rules was a hotly and vigorously contested issue that resulted in extensive testimony at trial. The impact of Defendants’ rules on the community was a hotly contested issue also. To the extent the Center takes the position that, independent of any dispute of material fact pertaining to causation, the existence of certain rules caused it damages as a matter of law at summary judgment, or, alternatively, that the Center was not required to prove causation at summary judgment, these positions contravene the law. (Emphasis added).

In support, the district court pointed to Martin v. Palm Beach Atlantic Ass’n,

Inc., 696 So. 2d 919, 922-23 (Fla. Dist. Ct. App. 1997) (finding that a

condominium association’s rule facially violated the FHA but stating that the

association’s contention that it did not intend to discriminate “may be considered

by the jury as to the issues of damages and their causation”) and Blomgren v. Ogle,

850 F. Supp. 1427, 1440 (E.D. Wash. 1993) (holding that, while an apartment’s

rule discriminated on its face, damages “may be imposed only where there is

credible proof of harm proximately caused by the violation”). Thus, the district

court’s omnibus order explained:

While the text of the Loitering Rule and the Curfew Rule in the instant case patently discriminated against children, the application and enforcement of those rules were left to the jury to determine 38 Case: 16-11248 Date Filed: 03/15/2017 Page: 39 of 73

causation and damages and, as a result, the jury—not the Court— determined Defendants’ liability. (Emphasis added)

Because evidence was introduced that the Rules applied to all residents, the

district court’s omnibus order rejected the Plaintiffs’ argument that the trial

evidence proved that the Rules were enforced in a discriminatory manner, stating:

It was within the jury’s purview to conclude that there were no discriminatory acts sufficient to cause the Center any damages or, at a minimum, to conclude that the Center did not meet its burden to establish such. The Defendants in this case were accused of discrimination against children. Notwithstanding this serious allegation, approximately eighty percent of the families residing in Defendants’ complexes had children. The Center emphasizes that this evidence means many families experienced discrimination. That is one interpretation. Another plausible inference from this evidence is that many families chose to live there, chose to stay. Families renewed their leases. An extremely small percentage of families residing at the Defendant communities chose to join this lawsuit. Evidence was introduced that the controversial rules were intended to benefit children. Evidence was introduced that the rules were applied uniformly to all residents—not just children[.] (Emphasis added).

The district court’s omnibus order thus denied the Plaintiffs’ post-trial motions,

including their motion for a new trial.

The Plaintiffs timely filed this appeal. On appeal, the Plaintiffs do not

challenge the jury’s verdict as to the Report Card Requirement or Proper Attire

Rule. Rather, the Plaintiffs seek a new trial on their claims about the Loitering and

Curfew Rules. The Plaintiffs argue that the district court should have told the jury

that the Defendants’ Loitering and Curfew Rules made them liable to the Plaintiffs

as a matter of law and that the only issue for the jury was the amount of damages. 39 Case: 16-11248 Date Filed: 03/15/2017 Page: 40 of 73

The Plaintiffs argue the district court erred by not telling the jury this in the jury

charge or at least in the verdict forms.

VII. STANDARD OF REVIEW

This Court will not disturb a jury’s verdict unless the charge, taken as a

whole, is “erroneous and prejudicial.” Bhogaita v. Altamonte Heights Condo.

Ass’n, Inc., 765 F.3d 1277, 1290 (11th Cir. 2014) (citing Badger v. So. Farm

Bureau Life Ins. Co., 612 F.3d 1334, 1339 (11th Cir. 2010)); see also United States

v. House, 684 F.3d 1173, 1196 (11th Cir. 2012) (“We will not reverse a

defendant’s conviction based on a challenge to the jury charge unless we are left

with a substantial and ineradicable doubt as to whether the jury was properly

guided in its deliberations.”) (internal quotation marks omitted). We apply a

similarly deferential standard of review to verdict forms. McNely v. Ocala Star-

Banner Corp., 99 F.3d 1068, 1072 (11th Cir. 1996).

When reviewing a trial court’s jury instruction, “our task is to examine

whether the jury charges, considered as a whole, sufficiently instructed the jury so

that the jurors understood the issues and were not misled.” Palmer v. Bd. of

Regents, 208 F.3d 969, 973 (11th Cir. 2000) (quotation omitted). Reversal is

warranted only if the failure to give an instruction prejudiced the requesting party.

Id. at 973, 975 (affirming jury verdict in favor of defendant in Title VII

discrimination case because “we cannot say, considering the totality of the

40 Case: 16-11248 Date Filed: 03/15/2017 Page: 41 of 73

circumstances, that [the plaintiff] was prejudiced by the trial court’s refusal to

deliver the specific instructions proposed by her.”). “Jury instructions are subject

to harmless error review.” United States v. Webb, 655 F.3d 1238, 1249 n.8 (11th

Cir. 2011).

VIII. ANALYSIS

With this extensive background, we turn to the two questions before us: Did

the district court err? And did any error prejudice the Plaintiffs? See Bhogaita,

765 F.3d at 1290.

A. Error

Whether there was error depends on whether we accept (1) the district

court’s reading of its own summary judgment order (which is also the Defendants’

reading), or (2) the Plaintiffs’ reading of that order. Frankly, that is a close and

difficult question, because the district court’s order is ambiguous. Certain

language in the district court’s order strongly supports the district court’s and the

Defendants’ reading of the order. On the other hand, when the district court’s

order is read together with the prayer for relief in the Plaintiffs’ motion, the answer

becomes less clear. At the end of the day, we need not decide or resolve the error

41 Case: 16-11248 Date Filed: 03/15/2017 Page: 42 of 73

question because the Plaintiffs have failed to show any alleged error was

sufficiently prejudicial to warrant a new trial here.9 We explain why.

B. Fairness and Prejudice

Our analysis starts with the principle that an FHA damages claim is, in

effect, a tort action governed by general tort rules, and “proximate cause is a

classic element of a tort claim.” City of Miami v. Bank of Am. Corp., 800 F.3d

1262, 1279 (11th Cir. 2015) (citing Meyer v. Holley, 537 U.S. 280, 285, 123 S. Ct.

824, 828-29 (2003)) and Curtis v. Loether, 415 U.S. 189, 195, 94 S. Ct. 1005, 1009

(1974) (“A damages action under [the FHA] sounds basically in tort—the statute

merely defines a new legal duty, and authorizes the courts to compensate a plaintiff

for the injury caused by the defendant’s wrongful breach.”) (internal alteration

omitted), cert. granted, 136 S. Ct. 2544 (2016). 10 Therefore, this Court has held

9 The Defendants argue that we may affirm because the Plaintiffs invited any error by explicitly agreeing to (1) handle the issue not in the jury instruction but in the verdict form and (2) then by ultimately agreeing to the change in the verdict form. “When a party responds to a court’s proposed jury instructions with the words ‘the instruction is acceptable to us,’ such action constitutes invited error” and “serve[s] to waive [the party’s] right to challenge the accepted instruction on appeal.” United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005); see also United States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010) (“Frank invited error when he not only agreed with the supplemental instructions and special verdict form, but requested them.”). The Plaintiffs counter that the Defendants misconstrue the record and point out that they did not have a copy of the final verdict form during the charge conference. We need not address invited error because the Plaintiffs, in any event, have not shown the requisite prejudice. 10 In its certiorari grant, the Supreme Court stated “[t]he questions presented are as follows: 1. By limiting suit to ‘aggrieved person[s],’ did Congress require that an FHA plaintiff plead more than just Article III injury-in-fact? 2. The FHA requires plaintiffs to plead proximate cause. Does proximate cause require more than just the possibility that a defendant could have foreseen that the 42 Case: 16-11248 Date Filed: 03/15/2017 Page: 43 of 73

that proximate cause, as a classic part of a tort claim, is a “required element of a

damages claim under the FHA.” Id. at 1278-80.

And to prove proximate cause, the Plaintiffs had to show the Rules were

enforced against only families with children and caused damages to the Plaintiffs.

As recounted above, the Plaintiffs’ evidence at trial was all about proving that the

Rules were enforced against them.

As the district court observed, the factual issues of whether the Defendants

enforced the Rules and the impact of such enforcement on the individual Plaintiffs

and the community at large were “hotly and vigorously” contested at trial. As

recounted above, nearly every witness who testified at trial spoke about these

issues. The property managers spoke about how they enforced the Rules against

all residents and how at times the Loitering and Curfew Rules were not enforced at

all. The Plaintiffs produced testimony from ten residents, adults and children alike,

who testified about how the Rules were routinely enforced against only families

with children and how it made them feel angry, sad, embarrassed, cooped up, and

bored. Kulick testified extensively about how she went about implementing the

Rules, and she also denied that they were enforced in a discriminatory manner.

remote plaintiff might ultimately lose money through some theoretical chain of contingencies?” (Emphasis added). While these two questions are not at issue here, it is noteworthy the Supreme Court made clear again that proximate cause is an element of an FHA damages claim. 43 Case: 16-11248 Date Filed: 03/15/2017 Page: 44 of 73

Thus, the record reflects that the Plaintiffs were allowed to put on a robust

and fulsome case regarding whether, and in what manner, the facially illegal Rules

were enforced and thereby caused residents any damages. In short, causation is an

intensely factual question that was presented to, and decided by, the jury. Indeed,

the Plaintiffs’ own brief on appeal contends that their “case in chief as to the

Loitering and Curfew Rules focused on enforcement and the emotional distress

experienced by the families who lived under the regime of the Rules as well as the

economic damages they suffered.”

Given this fulsome presentation of evidence, it is hardly surprising that on

appeal the Plaintiffs do not point to or disclose any probative evidence that they

failed to present due to the district court’s earlier partial summary judgment

order. 11

Instead, the Plaintiffs point to two instances of testimony that they claim

were “misleading.” First, they argue that Vince Larkins, the Center’s president and

CEO, was “hamstrung” in his testimony because he was forced to describe the

Rules as “allegedly” discriminatory, resulting in a “necessarily halting”

explanation that “infected the jury’s deliberations with substantial confusion.”

Plaintiffs point to a single sentence in Larkins’s testimony: “Well, we have to

11 The Plaintiffs argue that causation is part of the remedy phase of trial, not part of the liability determination. The Defendants counter that causation goes to liability, not damages. We need not decide that narrow question because the Plaintiffs do not point to any evidence of causation that they failed to present either before or after the district court’s ruling. 44 Case: 16-11248 Date Filed: 03/15/2017 Page: 45 of 73

continue to monitor because of many of the—I am trying to be careful because I

don’t want to over step what the judge has said—so I will state that many of the

alleged acts that we alleged are in violation of the Fair Housing Act still are in

place.” Larkins’s single sentence that used the term “alleged” was not damaging to

Plaintiffs considering the seven-day course of the trial. This argument also ignores

that the verdict form told the jury that the district court had found that the language

of the Loitering and Curfew Rules violated the FHA.

Second, Plaintiffs argue that the jury was “susceptible to spurious

suggestions by Defense counsel that the Loitering Rule was not discriminatory,”

citing to an exchange during cross-examination of Bobbie Fletcher, the Center’s

Vice President. That exchange, in relevant part, consisted of the following:

Q. You called it familial status discrimination? A. I don’t call it that. It is a federal law. . . . Q. There was an issue about kids playing in the street; am I correct? A. I don’t recall an allegation of children playing in the street. Q. Or limitation to prevent kids, in all fairness -- A. Well, to be precise, loitering, meaning the ability for children to congregate. Q. You would agree with me that the purpose, your understanding -- I am not asking for legal conclusions, but as the individual in charge of enforcement, the Plaintiff organization, that if somebody -- everybody is treated the same, if there are a lot of rules, but it applies to everybody, that wouldn't be discrimination, correct, in your opinion?

[Objection from Plaintiffs’ Counsel]

THE COURT: Overruled. 45 Case: 16-11248 Date Filed: 03/15/2017 Page: 46 of 73

Q. Do you understand my question?

A. Well, if I may, I think I will keep to why we filed the lawsuit. It was in reference to the documents that—the fact of the rules and regulations that were implicit to children under 18.

Defense counsel then moved on to another line of questions.

This example is not convincing either. Defense counsel’s question was

proper and about equal enforcement, which was a theme of Defendants’ case. In

any event, these two isolated incidents do not demonstrate substantial prejudice to

Plaintiffs.

Plaintiffs’ additional prejudice arguments consist of speculation about what

the jury “could have” believed or inferred. For example, Plaintiffs argue that,

without a preliminary instruction that the Loitering and Curfew Rules were facially

discriminatory, the jury was not “properly equipped” to consider the testimony

from current and former residents about the emotional pain and mental anguish

they suffered. Again, this ignores that the verdict form told the jury that the district

court had found that the language of the Loitering and Curfew sections of the

Rules violated the FHA. Both the evidence and counsel’s arguments focused on

whether those two Rules were enforced against all residents, against only families

with children, or sometimes against no one at all. The Plaintiffs’ “speculation” that

the jury misunderstood the case is not supported by the record or sufficient to

demonstrate prejudice.

46 Case: 16-11248 Date Filed: 03/15/2017 Page: 47 of 73

In sum, the district court expressly told the jury that the language of the

Rules violated the FHA. Even at a new trial, the Plaintiffs would still need to

prove enforcement, causation, and damages at trial—exactly what they attempted

to do in the first trial. Without a showing of prejudice, we cannot find any

reversible error. See Bhogaita, 765 F.3d at 1290; see also Watkins v. City of

Montgomery, 775 F.3d 1280, 1290 (11th Cir. 2014) (explaining that district court

abuses its discretion in failing to give a requested jury instruction only when such

failure resulted in prejudicial harm to the requesting party). 12

Our precedent instructs us not to disturb a jury’s verdict unless the jury

instructions, taken as a whole, are “erroneous and prejudicial.” Bhogaita, 765 F.3d

at 1290. Thus, we will not overturn the jury’s verdict, rendered at the end of a

seven-day trial, unless the Plaintiffs can show that the district court’s alleged error

prejudiced them and affected their substantial rights. This they did not do.

C. Final Observations

Before closing, we briefly pause to respond to certain arguments made in the

dissent. The dissent acknowledges that proximate causation is a required element

12 The Plaintiffs’ arguments also ignore that, even if their reading of the district court’s order is more reasonable than the district court’s reading of its own order, and even if the Plaintiffs on appeal obtain a new trial, the district court retains authority to vacate and reenter its partial summary judgment order before any new trial and to clarify any ambiguity in its earlier partial summary judgment order. In the district court (or even in their briefs on appeal) the Plaintiffs did not point to, much less proffer, any evidence that they would have presented at the first trial (or even in a new trial) if the Plaintiffs had understood better and sooner what the district court had ruled in its earlier partial summary judgment order. 47 Case: 16-11248 Date Filed: 03/15/2017 Page: 48 of 73

of a damages claim under § 3604(b) and that the plaintiffs knew they had to

present evidence of causation and injury and did so. But the dissent then argues

that proximate causation is not an element of a damages claim under § 3604(c).

This argument is mistaken. Our Court has noted the requirement of a causal

connection in a § 3604(c) case, albeit in a non-published, non-binding opinion.

Fair Hous. Ctr. of the Greater Palm Beaches, Inc. v. The Shutters Condo. Ass’n,

Inc., 389 F. App’x 952, 955-56 (11th Cir. 2010).

In that FHA case, brought by the same plaintiff Center, the advertisement

published by the defendant, The Shutters Condominium Association, said, “Sorry

no kids or pets.” Id. at 953, 954. This advertisement, like the Loitering and

Curfew Rules here, was facially discriminatory against families with children in

violation of § 3604(c). On appeal, the plaintiff Center challenged the jury’s

“decision that it was not injured by the publication of [this] advertisement” that

discriminated based on familial status under § 3604(c). Id. at 955. In affirming the

jury’s verdict in that § 3604(c) case, this Court pointed to the scant evidence of the

“causal connection” between the discriminatory advertisement itself and the

alleged damages:

We cannot conclude as a matter of law that there is no evidence to support the jury’s verdict. The jury may have concluded that the Center failed to establish a causal connection between its alleged damages and the discriminatory advertising . . . . The Center complained about injuries it suffered as a result of the advertisement, but the Center offered scant evidence about its damages. 48 Case: 16-11248 Date Filed: 03/15/2017 Page: 49 of 73

Id. at 955-56 (citation omitted). 13

Similarly, the Plaintiffs here claimed the existence of the facially

discriminatory Loitering and Curfew Rules had caused substantial injuries and

damages to all 500 families. For example, in closing arguments, the Plaintiffs

requested the jury to award what they called a $1,000 fine times 500 families living

in the two developments (which meant $500,000) to “compensate the families to

make them whole and compensate the [Fair Housing Center].” The sizable

compensatory damages that Plaintiffs wanted were not just for the individual

Plaintiff residents who testified about enforcement of the Rules against them and

their own personal emotional pain, but also for all the 500 resident families due to

the existence of discriminatory rules whose language violated the FHA. 14 The

verdict form even told the jury that the language of the Rules violated the FHA. 15

13 The dissent relies on Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898 (2d Cir. 1993), but in that case the Second Circuit discussed the need to prove causation between the publication of a discriminatory advertisement and the emotional distress alleged by the plaintiffs. See 6 F.3d at 907. There, the plaintiffs had appealed because the district court had found only a small amount in damages for the emotional distress they suffered that “was directly attributable, at least in part,” to the defendants’ advertisements. Id. at 901, 907. In affirming, the Second Circuit said: “The district court’s findings with respect to the issue of causation were based on its assessment of the plaintiffs’ credibility. After reviewing the trial transcript, we see no basis for disturbing the district court’s assessment of the plaintiffs’ credibility.” Id. at 908. 14 It was undisputed that residents were given a copy of the Rules when they moved in. 15 No part of the jury charge required the Plaintiffs to prove intent or enforcement as to their § 3604(c) claim. Rather, the district court told the jury that (1) it was a separate violation of the FHA to make a statement with respect to housing rental that indicates any preference, limitation, or discrimination based on familial status; and (2) that the FHA prohibits such 49 Case: 16-11248 Date Filed: 03/15/2017 Page: 50 of 73

As to the § 3604(c) claim, the jury may have reasonably concluded the Plaintiffs

failed to show a causal connection between the mere publication of the Rules

(which the Defendants had eliminated before trial) and the Plaintiffs’ alleged

substantial damages.

Tellingly, too, the Plaintiffs still have not pointed to, much less proffered,

evidence they would have presented at the first trial (or even a new trial) if

Plaintiffs had understood better and sooner what the district court had ruled in its

earlier summary judgment motion. Indeed, the dissent is left to point to merely a

comment at oral argument by Plaintiffs’ counsel that he would have asked different

questions of one witness, President Makarowa. But there is no description or

proffer of what that alleged additional or different testimony of Makarowa would

have been.

IX. CONCLUSION

For the foregoing reasons, we discern no reversible error in the lengthy

proceedings and trial before the district court. Accordingly, we affirm. 16

AFFIRMED.

discriminatory statements, “whether or not the Defendant intended to express a preference or limitation.” Then the verdict form even told the jury that the language of the Rules violated the FHA. 16 The Plaintiffs have not shown reversible error on the other issues raised in their brief, either. As the parties have agreed, our affirmance of the final judgment in Case No. 16-11248 is also determinative of Case No. 16-16092. Accordingly, the appeal in Case No. 16-16092 is dismissed, and the cost judgment entered by the district court remains intact. 50 Case: 16-11248 Date Filed: 03/15/2017 Page: 51 of 73

MARTIN, Circuit Judge, dissenting:

The Fair Housing Center of the Greater Palm Beaches together with people

who live in and are members of two condominium associations brought this suit

against those associations. Plaintiffs allege violations of the Fair Housing Act

(“FHA”), 42 U.S.C. § 3601 et seq. The plaintiffs say the defendants, Sonoma Bay

Community Homeowners Association, Inc. and Marsh Harbour Maintenance

Association, Inc. (the Associations), had policies that discriminated against

families with children, thereby violating FHA §§ 3604(b) and (c).

Before their case went to trial, the plaintiffs filed a summary judgment

motion, asking the court to find the Associations liable, as a matter of law, on all of

plaintiffs’ FHA claims. The District Court granted plaintiffs’ motion as to two of

the FHA claims. With this ruling, the parties proceeded to trial. In light of the

court’s holding that defendants were liable for some of their discriminatory

policies, the plaintiffs went to trial understanding that, as to those policies, they

needed to prove only the injuries that flowed from the discriminatory policies and

what damages were appropriate. Indeed the court admonished plaintiffs at the start

of trial that they should not present evidence on those issues the court had already

decided on summary judgment.

But then, after the plaintiffs rested their case, the District Court changed

course. The court refused to instruct the jury that it had already found the

51 Case: 16-11248 Date Filed: 03/15/2017 Page: 52 of 73

Associations to be liable on some claims. And to the contrary, the court submitted

the question of liability to the jury, even for the policies the court had already

found to violate the FHA as a matter of law. The jury then found the defendants

not liable on all claims and awarded no damages.

I disagree with the Majority’s summary affirmance of what happened here,

and write to explain why.

I.

A.

The Fair Housing Act prohibits discrimination against families with

children. See 42 U.S.C. § 3604 (prohibiting housing discrimination on the basis of

“familial status”); id. § 3602(k) (defining “familial status” as “one or more

individuals (who have not attained the age of 18 years) being domiciled with” a

parent or legal guardian). One purpose of this law is to ensure that families with

children have the same access to housing as people who have no children. See

Seniors Civil Liberties Ass’n v. Kemp, 965 F.2d 1030, 1035 (11th Cir. 1992) (per

curiam).

The plaintiffs alleged familial status discrimination under two different

provisions of the FHA: §§ 3604(b) and (c). Section 3604(b) makes it unlawful

“[t]o discriminate against any person in the terms, conditions, or privileges of sale

or rental of a dwelling, or in the provision of services or facilities in connection

52 Case: 16-11248 Date Filed: 03/15/2017 Page: 53 of 73

therewith, because of . . . familial status.” Section 3604(c) makes it unlawful to

“make, print, or publish . . . any notice, statement, or advertisement, with respect to

the sale or rental of a dwelling that indicates any preference, limitation, or

discrimination based on . . . familial status.” Generally, § 3604(b) prohibits the

actual act of discriminating against families with children while § 3604(c) prohibits

making a statement that indicates a preference against families with children.

The plaintiffs’ suit alleged the Associations had four policies that

discriminated against families with children in violation of §§ 3604(b) and (c).

The parties refer to these four policies as the “Curfew Rule,” the “Loitering Rule,”

the “Proper Attire Rule,” and the “Report Card Requirement.” These rules set the

following restrictions and requirements:

• The Curfew Rule – “All persons under the age of 18 must be in their home or back patio after sunset.” • The Loitering Rule – “There will be no loitering—congregating on the streets of [the development] [—] at any time. After dark all children should be in their home or on their patio.” • The Proper Attire Rule – “All Residents must wear proper clothing when walking on the streets of [Sonoma Bay and Marsh Harbour]. No Boys should be shirtless and Girls must wear a cover up over a bathing suit when walking to the pool.” • The Report Card Requirement – Rental applications from prospective tenants must include copies of report cards for any person under the age of 18.

B.

In August 2015, the plaintiffs asked the court to rule in their favor “as to

liability” on all claims and as a matter of law. The plaintiffs styled their motion as 53 Case: 16-11248 Date Filed: 03/15/2017 Page: 54 of 73

“Motion for Partial Summary Judgment as to Defendants’ Liability.” The motion

explained that by “mov[ing] for summary judgment as to liability for specific

illegal and undisputed written policies,” the plaintiffs hoped “to streamline the

trial.” In seeking summary judgment “as to liability,” the plaintiffs made clear

they “do not seek summary judgment as to the[] remedial issues” of “monetary

damages and injunctive relief.” The plaintiffs further explained, “If this motion is

granted, Plaintiff’s [sic] shall present, at a time to be set by the Court, facts to

support entry of the requested relief.”

The District Court granted in part and denied in part plaintiffs’ motion for

summary judgment. The court granted judgment for the plaintiffs as to the

Loitering and Curfew Rules, holding that the Loitering and Curfew Rules violated

§§ 3604(b) and (c) as a matter of law. But the court denied judgment as to the

Proper Attire Rule and Report Card Requirement.

In doing its § 3604(b) analysis, the court first found that the plaintiffs

“established a prima facie case of intentional discrimination” because the Loitering

and Curfew Rules’ restrictions on children “are limited to children and . . . treat

children differently than adults—children are essentially confined to their home

after dark.” Then the court turned to the Associations’ proffered legitimate

nondiscriminatory justifications for the policies: “safety concerns and crime

prevention.” The court rejected these justifications. Safety and crime prevention

54 Case: 16-11248 Date Filed: 03/15/2017 Page: 55 of 73

“are not legitimate” justifications in this case, the court reasoned, because

“[d]efendants provide no concrete evidence of statistics or arrest records showing

that the children in their communities were so heavily predisposed to crime that

mass confinement of those children was in response to a legitimate safety

concern.” “Evidence of this sort is what the law requires because a legitimate

justification cannot be based on mere stereotypes.” The court concluded that “[t]he

discrimination inherent in these provisions is patently obvious.”

For the § 3604(c) claim, the District Court found that “there is no

reasonable, alternative reading [of the Loitering and Curfew Rules] other than (i)

the rules only affect children and (ii) children are treated differently than adults.

The content of the rules is such that an ordinary reader would clearly conclude that

the rules discriminate against children.”

The court observed that defendants had “provided evidence that the

Loitering Rule and Curfew Rule were not enforced,” but, the court explained, this

did not preclude summary judgment because “this evidence goes to damages and

not to liability.” (Emphasis added.)

C.

In October 2015, the parties gathered for a trial before a jury. Before that

trial, plaintiffs asked the court to give this preliminary jury instruction:

With respect to [the Loitering and Curfew Rules], you the jury do not have to determine whether or not these Rules are unlawful, because 55 Case: 16-11248 Date Filed: 03/15/2017 Page: 56 of 73

the Court already has. The Court has determined that these Rules violate the federal and state fair housing laws. Because of this finding by the Court, you the jury need only determine the monetary damages to the Fair Housing Center and Plaintiffs that should be awarded to fully remedy the effects of these illegal practices.

Without explanation, the District Court declined to give this instruction. Beyond

that, in the preliminary instructions it did give the jury, the court never mentioned

that it had already decided the issue of liability for the Loitering and Curfew

policies.

Then at the start of the trial (outside the presence of the jury), plaintiffs’

counsel asked the court to allow him to discuss “the Court’s order concerning the

curfew rule and loitering rule being unlawful” in his opening argument. The court

denied the request. The court went on to rule that it would “not permit any

discussion about pretrial rulings” from either party or from any witness during

trial. Yet, at the same time, the court assured plaintiffs that the jury would not be

asked to decide issues already resolved by the court as a matter of law in its

summary judgment ruling. Specifically, the court told the plaintiffs: “[Y]ou don’t

need to present evidence or determine those issues as the judge already has.” In

compliance with the court’s instruction that plaintiffs should not present evidence

on liability for the Loitering and Curfew Rules, the plaintiffs’ case-in-chief on

those rules was devoted to proving damages. The plaintiffs presented evidence of

56 Case: 16-11248 Date Filed: 03/15/2017 Page: 57 of 73

the defendants’ enforcement of the rules 1; the families’ emotional distress from

living under the rules; and the Fair Housing Center’s efforts to combat the effects

of the rules.2

In discussing the final jury instructions on the fifth day of trial, the plaintiffs

again asked the District Court to tell the jury about its finding of liability. The

court denied this request. As a result, the final jury instructions made no mention

of the court’s earlier ruling on the Loitering and Curfew Rules; the fact that the

court found these rules to violate the FHA as a matter of law; or that liability had

been established as to those two rules.

The plaintiffs’ last attempt to have the court tell the jury about its ruling on

liability was by way of a requested special-interrogatory verdict form. The

plaintiffs’ proposed verdict form asked the jury these questions:

The Court has previously found Defendant Sonoma Bay Community Homeowners Association, Inc. liable for violations under the Fair Housing Act with respect to the Curfew Rule and Loitering Rule. Do you find that the Defendant Sonoma Bay Community Homeowners Association, Inc. is liable to Plaintiff Fair Housing Center of the Greater Palm Beaches, Inc. for any other violations of the Fair Housing Act? 3

1 This, of course, was in keeping with the District Court’s observation in its summary judgment ruling that the question of whether the Associations enforced the rules it had found to be discriminatory went to the issue of damages rather than liability. 2 A fair housing organization is entitled to recover damages for the diversion of its resources to combat a defendant’s discrimination. See Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co., 236 F.3d 629, 642 (11th Cir. 2000). 3 The proposed verdict form contained a second, identical question for Defendant Marsh Harbour. 57 Case: 16-11248 Date Filed: 03/15/2017 Page: 58 of 73

... [P]lease assign an amount of compensatory damages to Plaintiff Fair Housing Center of the Greater Palm Beaches, Inc., for . . . [t]he injuries caused by the discriminatory acts by Sonoma Bay Community Homeowners Association Inc. and Marsh Harbour Maintenance Association, Inc., which the Court has previously found both liable for violations under the Fair Housing Act with respect to the Curfew Rule and Loitering Rule.

The District Court rejected these questions. Instead, the court placed this question

in the verdict form:

The Court has found that the language of the Loitering section of the Sonoma Bay Rules and Regulations violates the Fair Housing Act. Do you find that the Defendant Sonoma Bay Community Homeowners Association, Inc. is liable to Plaintiff Fair Housing Center of the Greater Palm Beaches, Inc. for that violation and/or any other violations of the Fair Housing Act?”4 ... If your answer . . . is yes, please state the amount of compensatory damages, if any, to be awarded . . . .

(Emphasis added.)

There is, of course, a critical difference between the verdict form the

plaintiffs proposed and the one the court used. The plaintiffs wanted the verdict

form to tell the jury the court had already found the defendants liable for the

Loitering and Curfew Rules and that, for those two rules, the jury needed to decide

only whether to award damages. But instead, the verdict form told the jury the

court had decided only one element of liability—that “the language of the [rules]

violates the [FHA].” And the jury was instructed to decide the issue of liability

4 The verdict form contained a second, identical question for Defendant Marsh Harbour. 58 Case: 16-11248 Date Filed: 03/15/2017 Page: 59 of 73

itself. In explaining why it was rejecting the plaintiffs’ proposed verdict form, the

court said: “It probably is a more accurate statement to say the Court has

previously found that—the formal title of the rules and regulations that relate to the

curfew rule and loitering rule—violate the Fair Housing Act.” The court agreed

with the defendants that “the Plaintiff still has to prove damages for there to be

liability.”

The District Court’s ruling that the jury would decide liability for the

Loitering and Curfew Rules was made after the close of evidence. This meant the

plaintiffs had no opportunity to put on more evidence after they learned of the

court’s decision to let the jury decide liability. Once the question was submitted to

the jury, it returned a verdict finding no liability against either defendant for any of

the four policies it considered. It therefore awarded no damages.

D.

After the trial, the plaintiffs filed a Motion for New Trial, arguing that the

jury was not properly informed of the court’s prior ruling on the Loitering Rule

and the Curfew Rule. The court entered what it called an Omnibus Order on Post-

Trial Motions denying the motion for new trial. In denying the motion for new

trial, the court offered the following explanation for the inconsistency between its

summary judgment decision and the verdict form:

Notwithstanding the Court’s conclusion [at summary judgment] that the text of those rules violated the Fair Housing Act, the Court left the 59 Case: 16-11248 Date Filed: 03/15/2017 Page: 60 of 73

ultimate determination of liability and damages to the trier of fact. . . . The Center misconstrued the Court’s [summary judgment] rulings. While the Court had [] held that the text of certain rules, the Loitering Rule and the Curfew Rule, did violate the FHA, this violation is not equivalent to a finding of liability under the FHA. ... While the text of the Loitering Rule and the Curfew Rule in the instant case patently discriminated against children, the application and enforcement of those rules were left to the jury to determine causation and damages and, as a result, the jury—not the Court— determined Defendants’ liability.

The court insisted in the post-trial order that its “[summary judgment] ruling was

very narrow and was limited to the text of the rules and not to a finding of

After the District Court denied plaintiffs’ motion for new trial, they filed this

appeal. They argue here that the District Court erred by refusing to instruct the

jury that the issue of liability for the Loitering and Curfew Rules was decided

before the trial and by using a verdict form that called on the jury to decide the

already-resolved issue of liability for those rules.

II.

We review the district court’s refusal to give a proposed jury instruction for

an abuse of discretion. Watkins v. City of Montgomery, 775 F.3d 1280, 1289

(11th Cir. 2014). We will not reverse unless the court’s jury instructions, taken as

a whole, were both erroneous and prejudicial. SEC v. Yun, 327 F.3d 1263, 1281

(11th Cir. 2003); Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991)

60 Case: 16-11248 Date Filed: 03/15/2017 Page: 61 of 73

(per curiam). In reviewing jury instructions for error, we “must ensure that the

instructions show no tendency to confuse or to mislead the jury with respect to the

applicable principles of law.” Gulf Life Ins. Co. v. Folsom, 907 F.2d 1115, 1121

(11th Cir. 1990) (quotation omitted) (emphasis added). If “there is uncertainty as

to whether the jury was actually misled, the [court’s] erroneous instruction cannot

be ruled harmless.” Busby, 931 F.2d at 777 (quotation omitted).

The same standard of review that applies to jury instructions also applies to

special-interrogatory verdict forms. Eskra v. Provident Life & Acc. Ins. Co., 125

F.3d 1406, 1415 (11th Cir. 1997).

III.

I believe the District Court committed two errors which require reversal.

First, the court refused to inform the jury that the court had already found the

defendants liable for the Loitering and Curfew Rules. Second, the court required

the jury to decide the issue of liability for the Loitering and Curfew Rules even

though the court had already decided that issue at summary judgment. These

errors can be remedied only by a new trial for plaintiffs.

It is beyond question that the District Court’s summary judgment order

decided the issue of the defendants’ liability for the Loitering and Curfew Rules.

A cursory review of the text of the summary judgment motion, and the order

61 Case: 16-11248 Date Filed: 03/15/2017 Page: 62 of 73

granting that motion, demonstrates this fact. The relief requested in the plaintiffs’

motion is clear: the plaintiffs said they “move for summary judgment as to

liability.” Doc. 280 at 4 (emphasis added); see also id. at 15 (“[P]laintiffs

respectfully request that the Court grant its motion for partial summary judgment

as to liability.”). In ruling on this request, the court’s order framed the question as

follows: “[w]hether defendants have violated 42 U.S.C. § 3604(b) as a matter of

law.” In response, the court concluded: “Plaintiffs’ Motion for Partial Summary

Judgment is GRANTED as to the Loitering Rule and Curfew Rule.” The court

reached the same conclusion for the § 3604(c) claim. Then, in the Conclusion of

the order, the District Court reiterated: “The [plaintiffs’] Motion is GRANTED as

to plaintiffs’ arguments under 42 U.S.C. § 3604(b) as to the Loitering Rule and

Curfew Rule” and “is GRANTED as to Plaintiffs’ arguments under 42 U.S.C. §

3604(c) as to the Loitering Rule and Curfew Rule.” Because plaintiffs plainly

moved for summary judgment “as to liability” under §§ 3604(b) and (c), and

because the court’s order granted that part of their motion—without qualification

or limitation—the court’s order clearly granted summary judgment on liability.

Then in its Omnibus Order, issued months after the trial was over, the

District Court characterized its summary judgment decision as a “very narrow”

ruling finding that “the text of . . . the Loitering Rule and the Curfew Rule[] did

violate the FHA, [but that] this violation is not equivalent to a finding of liability”

62 Case: 16-11248 Date Filed: 03/15/2017 Page: 63 of 73

because the court’s decision “left [it] to the jury to determine causation and

damages and, as a result, the jury—not the Court—determined Defendants’

liability.” But nothing in the court’s summary judgment ruling said this. And even

in its Omnibus Order, the District Court acknowledged that the plaintiffs’ “prayer

for relief sought a determination of liability.” Nowhere in its summary judgment

order did the court even hint that it was leaving the decision about liability on the

Loitering and Curfew Rules for the jury because that decision hinged on evidence

of causation of injury which the court was not deciding. To the contrary, the one

time the court referred to “liability,” it said exactly the opposite. Right before

granting summary judgment “as to the Loitering Rule and Curfew Rule” under

§ 3604(b), the court acknowledged the defendants had “provided evidence that the

Loitering Rule and Curfew Rule were not enforced,” but the court dismissed this

evidence as irrelevant because “this evidence goes to damages and not to liability.”

(Emphasis added.) With this statement, the court made clear that (1) it was

adjudicating liability in its summary judgment order, and (2) the defendants’

evidence that the discriminatory rules were not enforced, so no injury resulted, was

irrelevant to the issue of liability then before the court.

I do not argue that the District Court could not have properly ruled in the

way its Omnibus Order characterized its summary judgment ruling. I only say that

plaintiffs were entitled to know what had been ruled on before the trial began, so

63 Case: 16-11248 Date Filed: 03/15/2017 Page: 64 of 73

they could prepare and present their evidence on liability to the jury hearing the

case. My review of the record tells me that plaintiffs properly abided by the

instruction of the District Court that prohibited “any discussion about pretrial

rulings” in front of the jury, based on the court’s reasoning that plaintiffs “don’t

need to present evidence or determine those issues as the judge already has.”

When the court then switched course after the close of evidence, and submitted

those very issues to the jury to decide, it wrongly deprived plaintiffs of the

opportunity to offer proof of their claims.

Because the District Court decided the defendants’ liability for the Loitering

and Curfew Rules as a matter of law, the court needed to tell the jury it had already

found the defendants liable for those rules. Instead, the first and only time the jury

was ever made aware of the court’s prior ruling was in the verdict form. 5

Curiously, the District Court told the parties it “was going to wait for the verdict

form” to mention its summary judgment finding, and so had “taken it out of the

jury instructions.”

It was an abuse of discretion not to inform the jury that the issue of liability

for two of the four challenged policies had been decided prior to trial. The Seventh

5 When the court did finally mention its ruling on the Loitering and Curfew Rules in the verdict form, the wording used in the verdict form significantly departed from its summary judgment decision. I view this as a second and separate reversible error, which I discuss below. 64 Case: 16-11248 Date Filed: 03/15/2017 Page: 65 of 73

Circuit once addressed a similar circumstance, stating that because “the

defendants’ liability was settled by summary judgment. . . . [t]he defendants’

liability had already been established[,] [s]o this stage of the litigation should have

only been about quantifying [the plaintiffs’] damages.” Guzman v. City of

Chicago, 689 F.3d 740, 745 (7th Cir. 2012) (reversing jury verdict and granting

new trial where the district court instructed the jury to adjudicate liability after the

court had already determined liability at summary judgment).

It is critical that a court inform the parties what facts they will be required to

prove at trial. Also, this trial court opted to give the jury preliminary instructions

about the case it would be deciding. Certainly the jury would have been aided in

knowing what facts it would be charged with deciding. Without being advised

about the court’s pretrial rulings, it was no doubt difficult for this jury to make

sense of the plaintiffs’ silence about the unlawfulness of two of the challenged

policies. And because the jury had not been told that the Loitering and Curfew

Rules violated §§ 3604(b) and (c) as a matter of law, it was susceptible to Defense

counsel’s repeated suggestions that the rules were not discriminatory. For

example, in his opening argument Defense counsel told the jury that the plaintiffs

“accuse” defendants of FHA violations and “accuse them of passing” the Loitering

Rule. Much to the contrary, the Loitering Rule was not alleged to be an FHA

violation, but it had already been proved a violation as a matter of law.

65 Case: 16-11248 Date Filed: 03/15/2017 Page: 66 of 73

Defense counsel also argued to the jury that “the purpose of the [Loitering

Rule] was not to discriminate, but to promote safety in the community.” But again,

the District Court had already rejected that theory as a matter of law. Then, in

cross-examining one of plaintiffs’ witnesses, Defense counsel suggested “[it]

wouldn’t be discrimination” if the Loitering Rule “treated [everybody] the same.”

And in his closing argument, Defense counsel said, “We have seen zero evidence

in this case of discrimination[.]” All of these statements directly contradict the

District Court’s summary judgment decision. But because the court refused to

instruct the jury on its liability determination (or allow plaintiffs’ counsel to

mention it), these erroneous statements were never corrected. These gaps in the

evidence surely contributed to the jury’s verdict absolving the defendants of all

liability.

This court’s job in reviewing jury instructions for error is to “ensure that the

instructions show no tendency to confuse or to mislead the jury.” Gulf, 907 F.2d at

1121 (quotation omitted) (emphasis added). It seems to me the lack of an

instruction on the court’s liability determination created, at least, a “tendency to

confuse” the jury—and, more likely, a virtual certainty of confusion as to its proper

role.

66 Case: 16-11248 Date Filed: 03/15/2017 Page: 67 of 73

After the presentation of evidence was closed and over plaintiffs’ objection,

the court decided to use the following special interrogatory in the verdict form:

The Court has found that the language of the Loitering section of the Sonoma Bay Rules and Regulations violates the Fair Housing Act. Do you find that the Defendant Sonoma Bay Community Homeowners Association, Inc. is liable to Plaintiff Fair Housing Center of the Greater Palm Beaches, Inc. for that violation and/or any other violations of the Fair Housing Act?”

With this verdict form, the District Court required the jury to again decide

the issue of liability for the Loitering and Curfew Rules the court had already

decided. I see this as a second error justifying a new trial. Because the verdict

form asked the jury to adjudicate the defendants’ liability for the Loitering and

Curfew Rules after the court had already ruled them liable for those rules as a

matter of law, the verdict form effectively vacated the court’s summary judgment

decision. And it did so after the evidence was closed, and without any ability for

plaintiffs to reopen the case to present their case on liability. This process stripped

the plaintiffs of the judgment they won as a matter of law and that the defendants

had never even challenged.

If during the trial, the District Court changed its mind about its summary

judgment ruling, it should have expressly vacated that decision and allowed

plaintiffs’ counsel to put on evidence on the question of liability. If the Defendants

67 Case: 16-11248 Date Filed: 03/15/2017 Page: 68 of 73

thought the District Court erred in its summary judgment ruling, they should have

moved for reconsideration of that ruling before trial. Neither of these things

happened. At the time the parties went to trial, the summary judgment decision

was the District Court’s last word on the subject of liability. Then, as the trial

began, the District Court assured plaintiffs that they could rely on the summary

judgment decision, telling them: “[Y]ou don’t need to present evidence or

determine those issues as the judge already has.” Adhering to this instruction, the

plaintiffs did not present evidence of defendants’ liability for the Loitering and

Curfew Rules. Then the court’s verdict form put before the jury the very issues the

plaintiffs had been admonished not to talk about. And with little to no evidence of

liability, and no explanation for the dearth, the jury—not surprisingly—found the

defendants not liable.

In my view, the District Court unfairly clipped the wings of the plaintiffs in

the trial we review here. As a result, I would grant the plaintiffs a new trial.

IV.

The Majority turns away the plaintiffs’ attempt to retry their case. It does

this without deciding whether the District Court committed error when it

determined liability for the Loitering and Curfew Rules at the summary judgment

stage but then allowed the jury to decide it again. My colleagues say they don’t

need to reach the issue of whether there was error because the plaintiffs have not

68 Case: 16-11248 Date Filed: 03/15/2017 Page: 69 of 73

shown they suffered prejudice. The Majority’s holding that plaintiffs were not

prejudiced is hard to explain and I reject it.

As I understand it, the Majority’s holding rests on four propositions: (1) that

in order to establish liability, the plaintiffs had to prove proximate causation—i.e.,

that the defendants’ unlawful policies caused them harm; (2) that the plaintiffs had

a full and fair opportunity to present evidence of causation; (3) that the plaintiffs

failed to convince the jury of causation; and (4) that since the jury ruled against the

plaintiffs on the issue of causation, the plaintiffs would have lost no matter what

errors the District Court may have made in other areas of the trial, so any error is

harmless.

This line of reasoning goes astray right from the start. The Majority begins

its prejudice analysis by observing that, under City of Miami v. Bank of Am.

Corp., 800 F.3d 1262 (11th Cir. 2015), proximate cause is a “required element of a

damages claim under the FHA.” Id. at 1278; see Maj. Op. at 44. This reliance on

City of Miami is misplaced. City of Miami held that in order to plead a viable

§ 3604(b) claim, a plaintiff must allege an injury that was proximately caused by

the discriminatory act. See City of Miami, 800 F.3d at 1278–82. But the question

of what is necessary for § 3604(b) liability in general is no help in assessing the

69 Case: 16-11248 Date Filed: 03/15/2017 Page: 70 of 73

unique type of prejudice the plaintiffs say they suffered here.6 Instead our

prejudice analysis should ask: What did the District Court’s summary judgment

decision actually hold? As I set out above, it is clear to me that the District Court

adjudicated liability in this case.7 The District Court found the defendants liable

for the Loitering and Curfew Rules, so its decision to submit that already-decided

issue to the jury prejudiced the plaintiffs. This is at least in part because the court

told the plaintiffs they did not need to present evidence on that issue.

And in any event, City of Miami’s proximate-cause requirement cannot be

the basis of our harmless-error analysis here because City of Miami’s holding

applies only to claims under § 3604(b). These plaintiffs challenged the Loitering

and Curfew Rules under both § 3604(b) and § 3604(c)—and the District Court

granted the plaintiffs summary judgment on their § 3604(c) claim.

In contrast to § 3604(b), this Court has never held that proximate causation

is an element of a § 3604(c) claim. A defendant is liable under § 3604(c) if the

defendant’s statement “suggests to an ordinary reader that a particular [protected

class] is preferred or dispreferred for the housing in question.” Ragin v. N.Y.

Times Co., 923 F.2d 995, 999 (2d Cir. 1991); accord Jancik v. Dep’t of Hous. &

Urban Dev., 44 F.3d 553, 556 (7th Cir. 1995); Hous. Opportunities Made Equal,

6 The Majority acknowledges this. See Maj. Op. at 46 n.10 (explaining that “[w]e need not decide” whether “causation is part of the . . . liability determination”). 7 Whether the District Court’s summary judgment order failed to follow City of Miami is not before us. The defendants chose not to appeal that order. 70 Case: 16-11248 Date Filed: 03/15/2017 Page: 71 of 73

Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 646 (6th Cir. 1991); United States

v. Hunter, 459 F.2d 205, 215 (4th Cir. 1972). 8 This is an objective, strict-liability

“ordinary reader” standard which requires neither proof of intent nor proof of

enforcement. See Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 907 (2d

Cir. 1993) (holding that the “lack of discriminatory intent and the absence of any

discriminatory effect” do not preclude a “determin[ation] [of] liability” under

§ 3604(c)); N.Y. Times, 923 F.2d at 999 (“[L]iability will follow [] when an

ordinary reader would understand the ad as suggesting a [] preference.”); Iniestra

v. Cliff Warren Invs., Inc., 886 F. Supp. 2d 1161, 1169 (C.D. Cal. 2012)

(observing that “[e]nforcement is also not a necessary element” of a § 3604(c)

claim). In its summary judgment order, the District Court applied the “ordinary

reader” standard and found that “[t]he content of the [Loitering and Curfew] rules

is such that an ordinary reader would clearly conclude that the rules discriminate

against children,” in violation of § 3604(c). Thus, even accepting the Majority’s

statement that the plaintiffs failed to prove proximate causation, this would not

make the court’s error harmless, because § 3604(c) does not require plaintiffs to

prove proximate cause in the first place.9 The court’s decision to give the question

8 Although our circuit has not yet interpreted § 3604(c), the circuits that have are unanimous in holding that the “ordinary reader” test is the proper standard. 9 The Majority says that this Court’s unpublished decision in Fair Hous. Ctr. of the Greater Palm Beaches, Inc. v. The Shutters Condo. Ass’n., Inc., 389 F. App’x 952 (11th Cir. 2010), shows that our circuit has “require[d] [] a causal connection in a § 3604(c) case.” Maj. 71 Case: 16-11248 Date Filed: 03/15/2017 Page: 72 of 73

of § 3604(c) liability to the jury after the court had already decided it certainly

prejudiced these plaintiffs.

The Majority emphasizes that the plaintiffs’ trial evidence “focused on”

causation of injury as if this focus removes any possibility that plaintiffs were

prejudiced by the District Court’s rulings on the jury instructions and verdict form.

See Maj. Op. at 8, 11, 44–45. The Majority misunderstands. It is precisely

because the plaintiffs focused their presentation of evidence on causation and

injury that they were prejudiced. The plaintiffs set out to prove causation and

injury rather than the threshold issue of whether the Loitering and Curfew rules

were unlawful.10 And they did this because they rightly thought causation and

injury were the only issues remaining for the jury to decide. The plaintiffs were

prejudiced because the District Court placed the issue of liability before the jury

when plaintiffs had not focused on evidence to prove liability. The fact that the

plaintiffs were allowed to present evidence on one element of their claim

Op. at 50. Of course a plaintiff must prove that the § 3604(c) violation caused an injury in order to recover compensatory damages. But that does not mean that proving causation of damages is an element of liability. See Ragin, 6 F.3d at 905–908 (analyzing separately the issues of “liability” and “compensatory damages” under § 3604(c), and considering “the issue of causation” only for the “compensatory damages” question of whether “the district court’s damages award should be set aside”). In Shutters, the plaintiff “challenge[d] the [jury] decision that it was not injured by the publication of [the discriminatory statements],” 389 F. App’x at 955, so this Court addressed the evidence pertaining to injury. We never addressed whether proof of proximate cause is an element of § 3604(c) liability. 10 Plaintiffs’ counsel explained at oral argument that, had he known the jury would be asked to decide the issue of liability, he would have elicited “completely different” testimony from Marsh Harbour Board President Patricia Makarowa on cross-examination and might have called Ms. Makarowa as a witness in plaintiffs’ case-in-chief. 72 Case: 16-11248 Date Filed: 03/15/2017 Page: 73 of 73

(assuming that proximate cause is a required element) cannot render harmless an

error that thwarted their ability to present evidence on another.

Finally, the Majority writes as though we can tell from the record that the

jury’s verdict in favor of the defendants was based on their finding against the

plaintiffs on the specific issue of causation. If that were true—say, because the

verdict form had a special interrogatory for each element of each claim—then I

might agree. But we don’t have that. The Majority is simply guessing when it

suggests the jury ruled against the plaintiffs because of a failure of proof on the

issue of causation. 11 And our law does not allow us to conclude that an error is

harmless when this sort of uncertainty exists. If “there is uncertainty as to whether

the jury was actually misled, the [court’s] erroneous instruction [or verdict form]

cannot be ruled harmless.”12 Busby, 931 F.2d at 777 (quotation omitted).

For all of these reasons, I dissent from the Majority’s decision to deny the

plaintiffs a new trial.

11 To support its claim that the jury found the plaintiffs’ evidence of causation insufficient, the Majority sets up a false requirement. It says that “to prove proximate cause, the Plaintiffs had to show the Rules were enforced against only families with children.” Maj. Op. at 44 (emphasis added). It then goes on to discuss the trial evidence that showed the rules were not always enforced exclusively against children or families with children. See id. at 45. If the defendants’ rules were facially neutral then I would agree that the plaintiffs would need to prove that the rules were enforced in a discriminatory manner. But the District Court’s summary judgment decision found that the Loitering and Curfew rules were discriminatory on their face. No one disputes that. Therefore, the only fact issue with respect to causation of injury is whether these facially unlawful rules caused a plaintiff harm—not whether they harmed exclusively the plaintiffs’ class. 12 The same standard of review that applies to jury instructions also applies to special- interrogatory verdict forms. Eskra, 125 F.3d at 1415. 73