Ermine v. City of Spokane

• Decision Date: 24 May 2001
• Docket Number: No. 69680-2.,69680-2.
• Citation: 143 Wash.2d 636,23 P.3d 492
• Court: Washington Supreme Court
• Parties: Aaron C. ERMINE, Respondent, v. CITY OF SPOKANE; John Doe Barrington and Jane Doe Barrington, husband and wife and the marital community composed thereof, Petitioners.

23 P.3d 492

143 Wash.2d 636

Aaron C. ERMINE, Respondent, v. CITY OF SPOKANE; John Doe Barrington and Jane Doe Barrington, husband and wife and the marital community composed thereof, Petitioners.

No. 69680-2.

Supreme Court of Washington, En Banc.

Argued February 13, 2001.

Decided May 24, 2001.

James C. Sloane, Spokane City Attorney, Rocco Nicholas Treppiedi and Michelle Dimond Szambelan, Assistants, Spokane, for Petitioner.

Lacy & Kane, Peter Devin Poulson, E. Wenatchee, for Respondent.

Williams, Kastner & Gibbs, Christopher S. Marks, Seattle; Keating, Bucklin & McCormack, Stewart Andrew Estes, Seattle, Amicus Curiae on Behalf of Washington Defense Trial Lawyers.

Jeffrey Lowell Needle, Seattle, Amicus Curiae on Behalf of American Civil Liberties Union.

MADSEN, J.

The petitioner maintains that the trial court abused its discretion when the court awarded attorney's fees pursuant to 42 U.S.C. § 1988 after plaintiff was awarded only nominal damages of $1 on his 42 U.S.C. § 1983 use of excessive force claim. The Court of Appeals affirmed the trial court's award of fees. We affirm the Court of Appeals.

FACTS

Respondent Aaron Ermine sued the City of Spokane and Spokane Police Officer Jeffrey Barrington, alleging use of excessive force in making an arrest, negligence, false arrest, and violation of his federal constitutional rights. Ermine's suit arose from events occurring March 24, 1995, when Barrington arrested Ermine for obstructing a public servant and resisting arrest. On that day, Ermine was a passenger in a car involved in a high-speed chase with the Spokane police. Ermine testified that he tried to get the driver to stop and also tried to jump from the car several times but was unable to do so. After the car was driven over a traffic median and through a Spokane park, it became disabled and stopped. Ermine and the driver both got out of the car. The driver fled.

According to Ermine, he put his hands up and began walking to the back of the car. Officer Barrington yelled "Get down on the ground." I Verbatim Report of Proceedings (RP) at 76. Ermine said he began to get down on one knee when Barrington grabbed him by the back of his head, slammed him down onto the concrete, and hit him several times in the back of the head and the neck. Ermine testified that he cupped his hands over his head. Id. at 77. He testified that while he was on the ground, Officer Barrington said "That will teach you to f___with the cops." I RP at 79.

According to Officer Barrington, when he yelled at Ermine to get down on the ground Ermine refused to obey the command and instead continued toward Barrington. Officer Barrington attempted to place Ermine in "a left arm control" in the street, but Ermine began to pull away, flailing his right arm, and Barrington had a difficult time trying to maintain his hold. II RP at 190-92. Officer Barrington then attempted to prevent Ermine from running away or striking Barrington by taking Ermine to the ground in a "left arm control." II RP at 190. Ermine continued to struggle, rolling over, kicking, and swinging his arms. Barrington gave Ermine a series of "open palm strike[s]" and a "knee strike" but was still unable to control Ermine enough to handcuff him until another officer arrived. II RP at 195-99. Together, the officers handcuffed Ermine, and arrested him for obstructing a police officer and for resisting arrest.

Ermine was injured during the encounter, and was taken to a hospital by ambulance. There, he received treatment and pain medication for injuries to his face, elbow, and back.

In May 1996, Ermine filed a claim with the City of Spokane (City) seeking $500,000 in damages for violation of his civil rights, false arrest, and assault and battery. Although not in the record, the City obviously denied the claim.¹ In January 1997, Ermine filed suit against the City and Officer Barrington, claiming use of excessive force, negligence, and false arrest. Ermine also brought a claim under 42 U.S.C. § 1983, alleging that Barrington's use of excessive force violated his federal rights under the First, Fourth, Fifth, and Fourteenth Amendments. He sought unspecified compensatory and punitive damages, and costs including attorney's fees.

The case went to mandatory arbitration on the basis that, as Ermine indicated, the relief sought was a money judgment and the case involved no claim in excess of $35,000. Ermine lost in arbitration, and sought a trial de novo. At trial, at the close of plaintiff's case, the court granted plaintiff's motion for dismissal of the constitutional claim against the City due to lack of evidence that any of Ermine's constitutional rights were violated as a result of any custom, policy or practice of the City. During closing argument at the end of the three day trial, defense counsel asked the jury to award $1,212 in medical expenses, $1,200 for pain and suffering, $1,200 for nightmares and scabs on Ermine's face, and $2,500 in punitive damages.

The jury returned a verdict finding in favor of the defendants on all remaining claims except for a finding in favor of Ermine and against Officer Barrington on the § 1983 claim of use of excessive force. The jury determined Ermine's damages to be zero,² however, and also declined to award punitive damages. The trial court granted Ermine's motion for nominal damages³ and awarded $1 in nominal damages.

Ermine also sought $19,840 in attorney's fees. The trial court first distinguished Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), where no fees were allowed when the plaintiff obtained only nominal damages, saying that Farrar involved a claim for $17 million from six defendants, 10 years of litigation and two trips to the Court of Appeals. Then the court said it could not ignore the jury's verdict in favor of Ermine, and reasoned that it had to consider the purpose of §§ 1983 and 1988 to discourage discrimination. The court considered the need for citizens to vindicate their civil rights. The court then said that under Farrar, in light of the jury's verdict, it had no choice but to reduce the attorney's fees, but that "some fairly substantial attorney fees are appropriate." III RP at 406.

Barrington appealed the award of attorney's fees. The Court of Appeals affirmed. Ermine v. City of Spokane, 100 Wash.App. 115, 996 P.2d 624 (2000). Barrington's petition for discretionary review by this court was granted.

ANALYSIS

Under 42 U.S.C. § 1988, a trial court may award reasonable attorney's fees to a party who prevails in a federal civil rights action under § 1983. An attorney's fee award under 42 U.S.C. § 1988 is reviewed under an abuse of discretion standard; discretion is abused when its exercise is manifestly unreasonable or based on untenable grounds or reasons. Sintra, Inc. v. City of Seattle, 131 Wash.2d 640, 935 P.2d 555 (1997).

Officer Barrington contends that under Farrar, the only reasonable attorney's fee here is no fee. He argues that the Court of Appeals misapplied Farrar and relied on other cases that do not support an award of fees to Ermine. Ermine counters that the trial court correctly followed Farrar.

In Farrar, the United States Supreme Court held first that a party who recovers nominal damages on a § 1983 claim is a prevailing party for purposes of an attorney's fees award under § 1988. Then, the Court turned to the question whether attorney's fees were awardable where the plaintiffs in the case, who sought $17 million in compensatory damages, obtained only $1 in nominal damages. The jury had found that one of six defendants had deprived one of the plaintiffs of a civil right, but in an answer to a special interrogatory found that the defendant's conduct was not a proximate cause of any damages suffered by the plaintiff. Farrar, 506 U.S. at 106,113 S.Ct. 566.

Prior to its decision in Farrar, the Court's cases had established that the level of plaintiff's success is a relevant factor in determining the amount of fees to be awarded, and the Court had acknowledged congressional intent that a prevailing plaintiff should ordinarily be awarded attorney's fees unless special circumstances would make an award unjust. See Hensley v. Eckerhart, 461 U.S. 424, 429-30, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The level of plaintiff's success was recognized as one of a number of factors used to determine an appropriate fee award.⁴ In Hensley, the Court addressed the question whether a partially prevailing party could recover an attorney's fee for legal services on unsuccessful claims, and the Court emphasized that in such a case the extent of a plaintiff's success is the crucial factor in determining the proper attorney's fees award under § 1988. Hensley, 461 U.S. at 440, 103 S.Ct. 1933. The Court explained that where the plaintiff failed to prevail on a claim unrelated to the successful claim, the hours spent on the unsuccessful claim should be excluded when considering the amount of the fee. Id. Where related claims are involved, a plaintiff obtaining substantial relief should not have the fee reduced simply because not each contention was adopted by the district court. Id. If, however, the plaintiff achieves only limited success, the district court should award fees only in an amount that is reasonable in relation to the results obtained. Id.

Then, in Farrar, the Court reasoned that the degree of success may, in some cases, go to the availability of attorney's fees, and not just to the proper amount. In Farrar, the district court had calculated attorney's fees based upon a reasonable hourly rate multiplied by the number of hours reasonably spent on the litigation. See Farrar, 506 U.S. at 114, 113 S.Ct. 566. The Supreme Court noted that this approach failed even to follow Hensley. Id. The Court then stated that the district court failed to engage in any measured exercise of discretion, reasoning that "`[w]here recovery of private damages is the purpose of ... civil rights litigation, a...