Kerr v. Quinn

• Citation: 692 F.2d 875
• Decision Date: 04 November 1982
• Docket Number: D,No. 34,34
• Parties: Vincent KERR, Plaintiff-Appellant, v. John QUINN and Joseph Ruggiero, Officers in the Hamden Police Department individually and in their official capacities, Defendants-Appellees. ocket 82-7244.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 875

692 F.2d 875

Vincent KERR, Plaintiff-Appellant, v. John QUINN and Joseph Ruggiero, Officers in the Hamden Police Department individually and in their official capacities, Defendants-Appellees.

No. 34, Docket 82-7244.

United States Court of Appeals Second Circuit.

Argued Sept. 28, 1982.

Decided Nov. 4, 1982.

Alfred J. Onorato, New Haven, Conn. (Joseph D. Garrison, Garrison, Kahn, Crane & Silbert, New Haven, Conn., of counsel), for plaintiff-appellant.

William P. Meehan, Asst. Town Atty., Hamden, Conn. (Harold C. Donegan, Sperandeo, Weinstein & Donegan, New Haven, Conn., of counsel), for defendants-appellees.

Before FEINBERG, Chief Judge and OAKES and WINTER, Circuit Judges.

RALPH K. WINTER, Circuit Judge:

Following a successful civil rights action against two Hamden, Connecticut, police officers, brought in the United States District Court for the District of Connecticut, Zampano, Judge, plaintiff-appellant Kerr applied for an award of counsel fees under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. Sec. 1988 (1976). Judge Zampano denied his request and Kerr appeals.

We reverse and remand.

BACKGROUND

On December 4, 1976, Kerr was arrested in Hamden, Connecticut, and charged with a variety of crimes including driving while intoxicated. Prior to trial, all but the Following his acquittal, Kerr sued Hamden police officers John Quinn and Vincent Ruggiero, individually and in their official capacities, for violation of his civil rights under 42 U.S.C. Sec. 1983 (1976). Kerr claimed he had been falsely arrested and imprisoned as well as physically assaulted. Defendants denied the allegations. The jury awarded Kerr $40,000 in compensatory damages and $20,000 in punitive damages. Defendants then moved for a new trial and Kerr applied for attorney's fees. Judge Zampano was prepared to grant a new trial if Kerr refused to remit $10,000 of his compensatory damages and $6,000 of the punitive damages. Kerr accepted the remittitur.

drunk driving charge had either been dropped or dismissed. Kerr was tried before a jury on the sole remaining charge and acquitted.

The motion for attorney's fees was denied. Relying on Zarcone v. Perry, 581 F.2d 1039, 1044 (2d Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979), Judge Zampano noted that "[t]he principal factor to be considered on the question of fee-shifting is 'whether a person in the plaintiff's position would have been deterred or inhibited in seeking to enforce civil rights without an assurance that his attorney's fees would be paid if he were successful.' " Ruling on Defendants' Motion for a New Trial and Plaintiff's Application for Attorney's Fees, March 15, 1982, at 9. In applying this standard, the District Court reasoned that Kerr, "like Zarcone, had certain strengths that made the prospects for a substantial monetary recovery excellent." Id. at 10. Of particular relevance was Kerr's "well-educated and cultured" appearance as well as his "fine work record, strong family ties, and no history of prior confrontations with police." Id. Judge Zampano also thought the case strengthened by "an incontrovertible police record which attested to the lack of proper and customary police procedures, a transcript of the defendants' testimony under oath in the state criminal trial, which demonstrated almost as a matter of law that the police officers' arrest lacked probable cause, and the availability of a third party witness, Mr. Santillo, who supported Mr. Kerr's version in several crucial respects." Id. Finally, he noted that he had recommended a "rather high settlement" and had cautioned that a " 'substantial recovery' was probable." Id.

DISCUSSION

Although a denial of attorney's fees should be overturned only if the district court abused its discretion, Robinson v. Kimbrough, 620 F.2d 468 (2d Cir.1980), the latitude afforded trial courts in exercising that discretion is narrowed by a presumption that successful civil rights litigants should recover an attorney's fee unless special circumstances would render such an award unjust. See S.Rep. No. 1011, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5912; see also Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam). The function of an award of attorney's fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel. Where the merits of a claim are obviously strong and would be so recognized by local counsel and where the probable damage award is high and would be so recognized by counsel, a district court has discretion to deny an application for counsel fees. This is so because counsel in such cases can be easily obtained on a contingent basis. Since the principal statutory purpose is not served by an award in those circumstances, the addition of counsel fees to a judgment may be considered unjust and denied by the district court.

The district court's discretion to deny fees begins, therefore, only after an initial determination that the plaintiff's claim was so strong on the merits and so likely to result in a substantial judgment that counsel in similar cases could be easily and readily retained. Only after this threshold has been crossed may a district court proceed to the second step and exercise discretion to deny counsel fees if it believes an award would work an injustice.

In dealing with an application for attorney's fees under the Civil Rights Attorney's Fees Awards Act, district courts should thus employ a two-step process. The first step, determination of the ease with which counsel can be retained to handle cases similar to the plaintiff's, is not resolved simply by the fact that in the actual case counsel was retained and a substantial judgment recovered. Rather, the court must determine whether attorneys who generally take such cases on a contingent basis would readily appreciate the value of the case and agree to pursue it. The test is thus objective, turning on the likely response of the bar, rather than subjective, turning on the district judge's own view of the merits. Similarly, the actual response of one lawyer, who may be more perspicacious, optimistic or risk-taking than lawyers generally, is also not dispositive.

Moreover, the likely response of the bar is to be determined in light of the posture of the case at the time counsel is sought, not in the light of hindsight. The statutory purpose of encouraging the bringing of meritorious claims is not furthered by denying attorney's fees in cases which happen to turn out well for plaintiffs without regard to the initial risk. That the witnesses in plaintiff's main case avoid major pitfalls during cross-examination and a seemingly sound defense goes sour are not facts which can be counted upon by attorneys deciding months or years before whether or not to take the case.

Only if the district court determines that the...