           United States Court of Appeals
                      For the First Circuit


Nos. 04-2568, 04-2569, 04-2570

                        PEDRO BISBAL-RAMOS,

                Plaintiff-Appellant/Cross-Appellee,

                                 v.

              CITY OF MAYAGÜEZ; ROBERTO PÉREZ-COLÓN,

              Defendants-Appellees/Cross-Appellants,

                  MUNICIPAL ASSEMBLY OF MAYAGÜEZ,

                       Defendant, Appellee,

                     JOSÉ GUILLERMO RODRÍGUEZ,

                            Defendant.


           APPEALS FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

         [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                              Before

                     Torruella, Circuit Judge,

               John R. Gibson, Senior Circuit Judge*

                    and Lipez, Circuit Judge.


     Israel Roldán-González, for plaintiff-appellant and cross-


     *
      Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
appellee.
     Tessie Leal-Garabís, Quiñones Sánchez & Guzmán, PSC, with whom
Pablo Hymovitz-Cardona, was on brief, for Roberto Pérez-Colón,
appellee/cross-appellant.
     Juan Rafael González-Muñoz, González Muñoz & Vicéns Sánchez,
with whom Vanesa Vicéns Sánchez, was on brief, for defendants-
appellees and cross-appellants City of Mayagüez and Roberto Pérez-
Colón in his official capacity.



                         October 11, 2006




                               -2-
          JOHN   R.   GIBSON,   Circuit     Judge.   Pedro   Bisbal-Ramos

appeals from the district court's reduction of the compensatory and

punitive damages awarded him by a jury in his suit against the City

of Mayagüez, Puerto Rico, and Roberto Pérez-Colón, the President of

the   Mayagüez   Municipal      Assembly,     alleging   harassment   and

termination of employment in violation of his First Amendment

rights.   Bisbal also contends that the district judge who reduced

the damages should not have done so because he was not the same

judge who presided at trial.     The City1 cross-appeals, arguing that

there was no evidence to support the jury's finding that any

workplace harassment was politically motivated or that it resulted

from a City policy or custom.       Pérez also cross-appeals, arguing

that the evidence at trial did not support any award of punitive

damages and that he was entitled to qualified immunity.         We affirm

the district court's denial of judgment as a matter of law, but

remand for the district court to determine whether to enter a

remittitur.

          Bisbal is a member of the Popular Democratic Party, or

PDP, and is apparently a fairly prominent and well-connected one.

His brother was a municipal assemblyman from 1993 up through the



      1
      Pérez was also named in his official capacity, and in his
official capacity, he joined the City's cross-appeal. Because a
claim against Pérez in his official capacity is essentially a claim
against the City, Gomez v. Rivera Rodríguez, 344 F.3d 103, 120 n.
12 (1st Cir. 2003), we will name only the City in discussing the
cross-appeal.

                                   -3-
time of the trial in this case.          At trial, Pérez, another PDP

member and the President of the Mayagüez Municipal Assembly, was

able to recount which candidates Bisbal had supported in numerous

elections going back to 1992.

           Bisbal met Pérez at a political event in 1992.          Bisbal

went to work for the City of Mayagüez in 1993 in the municipal

housing department.    His position was a "transitory" one, but his

one-year contract was renewed through 1995. In August 1995, Pérez,

who was the nominating authority for the Assembly, nominated Bisbal

to work for the Municipal Assembly as "office administrator."         Up

to that time, the job had been performed by another person, María

Eugenia Soto Nieto, a permanent employee, but Bisbal joined her.

Bisbal's duties included ordering supplies, working on accounting

and   budgeting,   drafting   ordinances   and   resolutions,   recording

assembly proceedings, serving the assembly members coffee, and

delivering notices of the meetings.        He earned a salary of $1725

per month, which eventually was raised to $1785.         Bisbal's first

two employment contracts with the Assembly were for a year each,

and his third contract was for six months.        At the end of 1997, he

received a notice that his appointment would terminate at the end

of 1997, but nevertheless, he received a six-month renewal at the

beginning of 1998.    Beginning in 1999, his renewals came in three-

month or one-month increments.      Bisbal stated that the change to

shorter appointments in 1999 was part of a pattern in which


                                   -4-
"basically, they just started to withdraw their trust on me and to

sort of move me out of the way and sort of leave me out on the

fringes of the Municipal Assembly."

              Bisbal testified that the reason his job changed in 1999

was that the others in the Assembly office became caught up in a

campaign for the November 14, 1999 PDP primary.           Bisbal testified

that the Mayagüez Municipal Assembly virtually became the campaign

headquarters for Charlie Hernández, a candidate for Representative,

and that all those working for the Assembly quit doing their

official duties and devoted themselves to campaign activities.

All,   that    is,   except   Bisbal,   who   supported   Ferdinand   Lugo,

Hernández's rival.       Bisbal was the lone Lugo supporter in the

office.   Bisbal testified that in this environment, he had nothing

to do at work except some "small routine things."                 He felt

"completely cast aside." Significantly, Pérez supported Hernández.

              Two weeks after the primary, on November 29, 1999, Bisbal

received notice that his contract would not be renewed after

December 31, 1999.        Pérez made the decision not to renew the

contract and he signed the notice of termination.          Pérez testified

that Bisbal was the only employee at the Municipal Assembly whom

Pérez knew to be supporting Lugo, and Bisbal was the only employee

who lost his job at this time.          Bisbal testified that he "made a

large number of efforts to go in and talk to [Pérez]," but he was

never allowed in to see him.        The City had budgeted for Bisbal's


                                    -5-
position through June 30, 2000.                 Pérez testified, "From 1995 to

1999 I made a lot of movement to get [Bisbal] another position in

the Municipal Government of Mayagüez. After the termination of his

contract in '99 I didn't make anymore."

                 Bisbal   sued   the   City,    its    mayor,   and   Pérez    in   his

official and individual capacities, alleging violation of his First

Amendment rights under 42 U.S.C. § 1983.                 Specifically, he alleged

that he had been harassed in the workplace and that his employment

had been terminated because of his political allegiance to Dr.

Miguel Rodríguez, the opponent of the mayor in the primary.2

                 The defendants moved for summary judgment. The Honorable

Juan       M.    Pérez-Giménez    held   that     there    were   issues      of    fact

precluding judgment in favor of the City and Pérez, but that Bisbal

had produced no evidence that the Mayor was involved in any way

with       the    alleged   harassment     or     termination     of    employment;

accordingly, Judge Pérez-Giménez dismissed the claim against the

Mayor.

                 The case against the City and Pérez was tried to a jury

before the Honorable Robert J. Ward.                  The jury returned a verdict

against the City and Pérez on both the harassment and termination

claims; it awarded compensatory damages of $60,690 for non-renewal



       2
      At trial, Bisbal did not discuss his support of the Mayor's
opponent, but only the Lugo-Hernández race for Representative.
There was no objection, so we consider the complaint amended under
Fed. R. Civ. P. 15(b).

                                          -6-
of the employment contract and $250,000 for harassment. It further

awarded   punitive   damages     of   $300,000   against    Pérez    in   his

individual capacity.3

           The defendants moved for judgment as a matter of law, or

in the alternative, for remittitur or partial new trial, but

attacked only the $250,000 harassment award and the punitive

damages, not the $60,690 award based on termination of employment.

Before he could rule on the motion, Judge Ward died.            Judge Pérez-

Giménez ruled the motion in Judge Ward's stead.                 Judge Pérez-

Giménez denied the motion for judgment as a matter of law and the

motion for new trial, holding that there was sufficient evidence of

political persecution and harassment and of deliberate indifference

to   Bisbal's   constitutional    rights.    However,      he   reduced   the

harassment compensatory damages award from $250,000 to $50,000 and

the punitive damages from $300,000 to $5,000.

           Bisbal did not object in the district court to the

reduction of the damages, but instead immediately took this appeal,

contending that the district court erred in reducing the damage

awards.    The City cross-appealed, arguing that there was not

sufficient evidence to establish that the motivation for depriving

Bisbal of his duties in November 1999 was political retaliation or



      3
      Because punitive damages are not available against the
municipality, Newport v. Fact Concerts, Inc., 453 U.S. 247, 271
(1981), the punitive damages were awarded only against Pérez in his
individual capacity.

                                      -7-
that the deprivation was the result of a City policy or custom.

Pérez also cross-appealed, arguing that there was not sufficient

evidence to support the award of punitive damages against him. The

defendants do not appeal the verdict against them for termination

of Bisbal's employment.

           We will take up the cross-appeals first, because the

cross-appeals go to the propriety of any award, whereas Bisbal's

appeal concerns the size of award.             If the defendants win their

cross-appeals, there will be no need to consider Bisbal's appeal.

                                        I.

           The City contends that the district court erred in

denying its motion for judgment as a matter of law since there was

no evidence of political harassment of Bisbal in the workplace in

November 1999 and no evidence to establish municipal liability for

harassment.    We review de novo the district court's denial of a

motion for judgment as a matter of law.             Borges Colón v. Román-

Abreu,   438   F.3d    1,   14   (1st   Cir.   2006).   In   assessing   the

sufficiency of the evidence to support a jury verdict, we ask

whether, viewing the evidence in the light most favorable to the

verdict, a rational jury could have found in favor of the party

that prevailed.       Gillespie v. Sears, Roebuck & Co., 386 F.3d 21,

25-26 (1st Cir. 2004).

                                        A.

           In order to show that he suffered cognizable political


                                        -8-
harassment by a government employer, Bisbal had to prove by clear

and convincing evidence that he was subjected to an unreasonably

inferior work environment.            Ortíz García v. Toledo Fernández, 405

F.3d 21, 23 (1st Cir. 2005).                  Bisbal must further show by a

preponderance of the evidence that his political affiliation was a

substantial factor in causing the environment to become inferior.

Id.    The City could still avoid liability by proving that it would

have    acted     the    same   way    regardless      of    Bisbal's     political

affiliation.      Id.

            The    standard      in    this    Circuit      for   the    degree    of

mistreatment that is cognizable in a political discrimination case

was set by Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209,

1217-20 (1st Cir. 1989) (en banc), which held that an employee must

prove by clear and convincing evidence that his or her job had been

rendered "unreasonably inferior" to the norm for that position and

that the change was of a magnitude that would cause "reasonably

hardy    individuals      to    compromise     their   political        beliefs   and

associations in favor of the prevailing party." Shortly after

Agosto-de-Feliciano was decided, the Supreme Court decided Rutan v.

Republican Party of Illinois, 497 U.S. 62 (1990), which suggested

in a footnote that even trivial acts of political discrimination by

a government employer would give rise to a constitutional claim.

Id. at 76 n.8.          Although we have adverted to uncertainty in how

these two standards fit together, we have continued to apply the


                                         -9-
Agosto-de-Feliciano standard. Otero v. Commonwealth of Puerto Rico

Indus. Com'n, 441 F.3d 18, 21-22 & n.4 (1st Cir. 2006); Rosario-

Urdaz v. Velazco, 433 F.3d 174, 178 n.3 (1st Cir. 2006); see

Acosta-Orozco v. Rodríguez-de-Rivera, 132 F.3d 97, 101 n.5 (1st

Cir. 1997).

          Bisbal's evidence is that, whereas he was busy at work

before the primary, once the primary campaign started, he had

nothing to do at work: "Before that, I always had a lot of work to

do, and once the primary started, I was completely cast aside."

After the start of the primary campaign, his work day consisted of

sitting at his desk, punching his time card in, punching out and

doing "some small routine things."

          The City does not dispute that depriving an employee of

all or almost all his work for an indefinite period can be

sufficient     to    establish    an   "unreasonably         inferior"   work

environment.        See   Rosario-Urdaz,   433   F.3d   at    179   ("utterly

depriving an employee of work indefinitely . . . might make out a

claim"); González-Piña v. Rodríguez, 407 F.3d 425, 432 (1st Cir.

2005) (holding that such facts were more than a scintilla of

evidence, but reserving the question of whether they established

unreasonably inferior conditions); Rivera-Jiménez v. Pierluisi, 362

F.3d 87, 94-95 (1st Cir. 2004) (denial of benefits and assignments

sufficient to show adverse action). Therefore, we will assume that

the evidence established an unreasonably inferior work environment.


                                   -10-
              The City contends that Bisbal did not prove that anyone

intentionally deprived him of duties; instead, the City contends

that the evidence showed that once the primary campaign began, the

Municipal Assembly office simply quit doing official work, as all

the employees but Bisbal were caught up in the political campaign.

Where   the    plaintiff   is   prominent   in   the   opposition     to   the

prevailing faction in a highly-charged political atmosphere, and is

known to the defendant to be so, a jury can infer from these facts

plus timing that adverse action is politically motivated. See

Padilla-García v. Guillermo Rodríguez, 212 F.3d 69, 75 (1st Cir.

2000) ("This circumstantial evidence that the appellant was a

'conspicuous target []' could alone create an issue of fact on

discriminatory animus."); Rodríguez-Rios v. Cordero, 138 F.3d 22,

24 (1st Cir. 1998) (highly-charged atmosphere, conspicuous target,

and reassignment of tasks to members of opponent party); Acevedo-

Díaz v. Aponte, 1 F.3d 62, 69 (1st Cir. 1993).          There was evidence

that Bisbal was actively supporting Lugo, that he was to some

degree prominent, and that Bisbal was the only person in his office

that did support Lugo.     Counsel for the City conceded at trial that

Bisbal "may have been a conspicuous target for discrimination."

The Municipal Assembly office definitely had a highly-charged

political     atmosphere   in   November    1999.      The   timing   of   the

deterioration in Bisbal's working conditions coincided with the

beginning of the primary campaign. This was sufficient evidence to


                                   -11-
allow the jury to determine that Bisbal was deprived of duties to

retaliate against his political affiliation.

                                       B.

           The City contends that Bisbal did not show that the City

or Pérez were responsible for the harassment.                    Bisbal did not

attempt to prove that the harassment was the result of an official

policy.   Bisbal contends that Pérez acted as policymaker for the

City and that Pérez took away his duties in the month leading up to

the   primary.    The   City    does    not       dispute   that   Pérez   was    a

policymaker. However, scrutiny of Bisbal's citations to the record

does not reveal any active involvement of Pérez in the harassment.

Bisbal's testimony at trial did not identify who was responsible

for depriving him of his duties.            At first he said, "[T]hey just

started to withdraw their trust on me and to sort of move me out of

the way and sort of leave me out on the fringes of the Municipal

Assembly."   Bisbal never said who "they" were.               Bisbal later said,

"Each and every one of the people who were working there, except

for me, were backing up Charlie Hernández's candidacy . . . ."

Bisbal did not testify that Pérez witnessed the harassment or that

Bisbal informed Pérez of it.       Thus, the jury could not find that

Pérez actively instigated the harassment during the work day.

           Even   in   the   absence    of    a    positive    decision    by   the

municipality or its policymakers, a municipality may be liable

under § 1983 where a custom or practice is so "well-settled and


                                   -12-
widespread that the policymaking officials of the municipality can

be said to have either actual or constructive knowledge of it yet

did nothing to end the practice."   Silva v. Worden, 130 F.3d 26, 31

(1st Cir. 1997) (quoting Bordanaro v. McCleod, 871 F.2d 1151, 1156

(1st Cir. 1989)).   The custom or practice must also be the cause

and moving force behind the deprivation of constitutional rights.

Id.   The testimony indicates that Bisbal was virtually without

duties for approximately a month, while the entire assembly office

operated as a de facto campaign headquarters.    Bisbal testified:

      Mr. Roberto Pérez Colón, who was supporting Mr. Charlie
      Hernández and all assembly members . . . were all
      favoring Charlie's candidacy, and the atmosphere that you
      could breathe at the Municipal Assembly was something
      quite incredible. It was campaigns for Charlie all the
      time, phone calls for Charlie, activities for Charlie.
      Basically, that was all that was going on at the
      Municipal Assembly in Mayagüez.

The scope, duration, and openness of this transformation of a

government office into a partisan campaign headquarters would allow

a jury to have found that Pérez, the President of the Municipal

Assembly and a conceded policymaker, had to have known what was

happening, yet did nothing to stop it, and that this transformation

caused Bisbal to be deprived of his duties. We therefore determine

that Bisbal made a submissible case of municipal liability for the

harassment.

                                II.

           Pérez in his individual capacity contends that there was

insufficient evidence to support an award of punitive damages

                                -13-
against him.   He specifically does not seek review of the amount of

punitive damages, since he contends that no damages at all should

have been awarded.        The special verdict form did not specify

whether the punitive damages were awarded for the termination or

for the harassment.

            Pérez does not challenge the sufficiency of the evidence

to support the compensatory award on either the termination or

harassment theory.       The evidence showed that Pérez was directly

involved in the termination.          The evidence did not show Pérez'

direct involvement in the harassment.

     Under 42 U.S.C. § 1983 . . . [a]bsent participation in
     the challenged conduct, a supervisor can be held liable
     only if (1) the behavior of his subordinates results in
     a constitutional violation and (2) the supervisor's
     action or inaction was affirmatively linked to the
     behavior in the sense that it could be characterized as
     supervisory encouragement, condonation or acquiescence
     or gross negligence of the supervisor amounting to
     deliberate indifference. Deliberate indifference will be
     found only if it would be manifest to any reasonable
     official that his conduct was very likely to violate an
     individual's constitutional rights. The affirmative link
     requirement contemplates proof that the supervisor's
     conduct led inexorably to the constitutional violation.

Hegarty v. Somerset County, 53 F.3d 1367, 1379-80 (1st Cir. 1995)

(internal   citations,    quotation    marks   and   punctuation   denoting

alterations omitted).      We have already determined that the scope,

duration, and openness of the transformation of the Municipal

Assembly offices into a campaign headquarters was sufficient to

allow a jury to infer knowledge by Pérez of such conditions and

failure to correct them, and that this transformation caused the

                                  -14-
violation of Bisbal's rights.

           We review de novo the district court's ruling as to the

sufficiency   of   the     evidence   to    support    an    award   of   punitive

damages.   Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 1999).

A jury may be permitted to award punitive damages in a § 1983

action when the defendant's conduct is "shown to be motivated by

evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others."                   Smith

v. Wade, 461 U.S. 30, 56 (1983).              The requirement of "reckless

indifference" means that the defendant must act "'in the face of a

perceived risk that its actions will violate federal law.'" Borges

Colón v. Román-Abreu, 438 F.3d 1, 22 (1st Cir. 2006) (quoting

Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536 (1999)).

           Pérez testified that at the time Bisbal's contract was

not   renewed      he    knew      that    political        discrimination     was

unconstitutional.        There was evidence from which the jury could

conclude   that    Pérez    made    the    decision    to    terminate    Bisbal's

employment because of Bisbal's political affiliation and that Pérez

did so with knowledge that the decision would violate Bisbal's

constitutional rights. There was also evidence from which the jury

could have found that Pérez condoned the transformation of the

Municipal Assembly offices into a campaign headquarters, with

reckless indifference to the foreseeable adverse effect on the

rights of dissenting employees in the office.                The district court


                                      -15-
did not err in concluding that the evidence supported an award of

punitive damages.

                                   III.

          Pérez contends that he is entitled to qualified immunity.

Pérez does not point out what the district court did wrong, and the

motion for new trial or judgment as a matter of law does not

mention qualified immunity. Bisbal, however, does not contend that

the defense was waived.       Even if the defense was not waived, it is

clearly insubstantial in this case.       If indeed the district court

denied the qualified immunity defense, we review that denial de

novo, taking the facts in the light most favorable to the verdict.

Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 84 (1st Cir.

2006); Wilson v. City of Boston, 421 F.3d 45, 53-54 (1st Cir.

2005).

          A public officer is not entitled to qualified immunity if

he violated a plaintiff's constitutional right and if, at the time

of the violation, the right was so clearly established that it

would have been clear to a reasonable officer that his conduct was

unlawful in the situation he confronted. Saucier v. Katz, 533 U.S.

194, 201-02 (2001).

          The   events   in    question   took   place   in   November   and

December 1999. It was clearly established by Branti v. Finkel, 445

U.S. 507, 518-19 (1980), that public officers were not allowed to

fire employees on the basis of political affiliation if such


                                   -16-
affiliation was not relevant to the employee's job.                          No one

contends that Bisbal's job was one for which political affiliation

was a legitimate qualification.                  It would therefore have been

unreasonable for Pérez to believe it was lawful to terminate

Bisbal's employment for political reasons.

            It was also clear after Rutan v. Republican Party of

Illinois, 497 U.S. 62 (1990), and Agosto-de-Feliciano v. Aponte-

Roque, 889 F.2d 1209, 1217-20 (1st Cir. 1989) (en banc), that

subjecting an employee to unreasonably inferior working conditions

on grounds of political affiliation could also violate the First

Amendment.      Pérez      does     not   dispute    that   deprivation       of   an

employee's duties for an indefinite time creates an unreasonably

inferior     work    environment.          It     would   therefore    have     been

unreasonable for Pérez to believe that it was lawful to allow the

Municipal    Assembly      office    to    be    transformed   into    a    campaign

headquarters,       with   the    attendant       consequences   for       political

dissenters within the office. We therefore can conclude that Pérez

is not entitled to qualified immunity.

                                          IV.

            Bisbal contends that it was error for Judge Pérez-Giménez

to rule on the remittitur motion when he was not the judge who

presided over the trial.             Fed. R. Civ. P. 63 provides, "If a

hearing or trial has been commenced and the judge is unable to

proceed, any other judge may proceed with it upon certifying


                                          -17-
familiarity with the record and determining that the proceedings in

the case may be completed without prejudice to the parties."

Although   the   district     court   file    does    not   reveal   a   separate

certification    by   Judge    Pérez-Giménez     of    familiarity       with   the

proceedings, he did state in ruling on the new trial and Rule 50

motion that he had reviewed the record in the case.                  The record

further shows that the case was originally before Judge Pérez-

Giménez, who in fact ruled on the summary judgment motion.                 It was

transferred for trial to Judge Ward, but after Judge Ward's death,

Judge Pérez-Giménez presided over a settlement conference and ruled

on the motion for reinstatement.             The record does not reveal any

objection by Bisbal to Judge Pérez-Giménez ruling on the pending

Rule 50 motion, either before or after the ruling.               Therefore, we

will review the issue only for plain error, see Metropolitan Prop.

& Cas. Ins. Co. v. Shan Trac, Inc., 324 F.3d 20, 24 (1st Cir.

2003), and no plain error has been shown.

                                       V.

           Bisbal contends that the district court erred in reducing

the jury's damages awards.       Before we can even state the standard

of review for Bisbal's appeal, we must face a procedural anomaly.

The district court did not enter a conventional remittitur, which

requires giving the plaintiff a choice between accepting a reduced

damage award and a new trial.               See generally 11 Charles Alan

Wright, et al., Federal Practice and Procedure, § 2815 at p. 169


                                      -18-
(2d ed. 1995).     Instead, the district court simply reduced the

amount of compensatory and punitive damages. Bisbal cites Kennon v.

Gilmer, 131 U.S. 22, 29-30 (1889), arguing that reduction of the

damages violated his Seventh Amendment rights.

           With regard to compensatory damages, an order entering

"judgment for a lesser amount than that determined by the jury

without allowing petitioner the option of a new trial, cannot be

squared with the Seventh Amendment."          Hetzel v. Prince William

County, Virginia, 523 U.S. 208, 211 (1998) (per curiam).                   We

therefore must reverse the district court's reduction of the

compensatory damages from $250,000 to $50,000 as legal error.              In

Kennon   the   Supreme   Court   remanded   for   the   district   court   to

exercise its discretion in the first instance:

          The erroneous judgment of the supreme court of the
     territory being reversed, the case will stand as if no
     such judgment had been entered; and that court will be at
     liberty, in disposing of the motion for a new trial
     according to its view of the evidence, either to deny or
     to grant a new trial generally, or to order judgment for
     a less sum than the amount of the verdict, conditional
     upon a remittitur by the plaintiff.


131 U.S. at 30.   Accordingly, we will remand for the district court

to decide whether to exercise its discretion to enter a remittitur,

giving Bisbal the choice of whether to accept the reduced award or

to take a new trial.

           Whether an award of punitive damages is excessive under

the Due Process Clause is a constitutional question that we review


                                   -19-
de novo.    State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,

418 (2003); Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532

U.S. 424, 436 (2001).      We have in the past held that we may simply

ascertain the amount of punitive award that would be appropriate

and order the district court to enter judgment in such amount.

Rowlett v. Anheuser-Busch,Inc., 832 F.2d 194, 207 (1st Cir. 1987).

This is in accord with the practices of several other circuits that

have concluded that a court may reduce an excessive award of

punitive damages without giving the plaintiff the option of a new

trial.     Leatherman Tool Group, Inc. v. Cooper Indus., Inc., 285

F.3d 1146, 1151 (9th Cir. 2002); Ross v. Kansas City Power & Light

Co., 293 F.3d 1041, 1049-50 (8th Cir. 2002); Inter Med. Supplies,

Ltd. v. EBI Med. Sys., Inc., 181 F.3d 446, 468 (3d Cir. 1999);

Johansen v. Combustion Engineering, Inc., 170 F.3d 1320, 1330-33

(11th Cir. 1999).

            In order to evaluate the constitutionality of the award,

we must apply the guideposts prescribed in BMW of N. Am., Inc. v.

Gore, 517 U.S. 559, 580-83 (1996), one of which requires us to

compare    the   amount    of   punitive    damages    to    the   amount     of

compensatory     damages   awarded.        Campbell,   538    U.S.   at     418;

Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 85 (1st Cir.

2006).     Because the amount of compensatory damages that will be

awarded is yet unknown, we are not able to conduct the required

review of the punitive damages award.         Moreover, since Bisbal may


                                    -20-
opt for a new trial, it would be premature for us to approve a

punitive damages award based on the compensatory award from the

first trial.   We therefore must remand the punitive damages award

as well as the compensatory.

           We affirm the district court's denial of the City's

motion for judgment as a matter of law and the district court's

denial of Pérez's motion for judgment as a matter of law as to

punitive   damages   and   qualified   immunity.   We   remand   for   the

district court to decide whether to order a remittitur offering

Bisbal the choice between a new trial and a reduced damages award.

     Each party is to bear its own costs.




                                  -21-
