Kirchoff v. Flynn

• Decision Date: 17 March 1986
• Docket Number: No. 85-2187,85-2187
• Parties: Anita KIRCHOFF and William Kirchoff, Plaintiffs-Appellants, v. Michael FLYNN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 320

786 F.2d 320

54 USLW 2498

Anita KIRCHOFF and William Kirchoff, Plaintiffs-Appellants, v. Michael FLYNN, et al., Defendants-Appellees.

No. 85-2187.

United States Court of Appeals Seventh Circuit.

Argued Jan. 24, 1986.

Decided March 17, 1986.

Edward T. Stein, Singer & Stein, Chicago, Ill., for plaintiffs-appellants.

Maureen Kelly Ivory, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

Arrested for feeding the pigeons and walking her dogs in the park, Anita Kirchoff recovered $25,000 from the police. The defendants gave up, but Kirchoff's lawyers did not. They wanted some $50,000 in fees under 42 U.S.C. Sec. 1988. The district court gave them $10,000 on the ground that their contingent fee contract with the Kirchoffs entitled them to 40% of any award. The case requires us to decide whether the contingent fee is the appropriate rate under Sec. 1988 when the case resembles private tort litigation in which contingent fees are customary. First, however, we pause for the facts.

I

Anita Kirchoff regularly allowed her dogs to roam without leases in Washington Park in Chicago, about a half block from her home. While in the park with the dogs, she would feed the pigeons. ¹ Michael Flynn, a sergeant of the Chicago Police, twice told her that the dogs must be leashed and the pigeons left to their own devices. On May 8, 1982, Flynn saw Kirchoff, her unleashed dogs, and a pigeon enjoying Kirchoff's largesse. As Flynn tells the tale, he and officer Mary Siwak tried to give Kirchoff a citation. To find out who they were citing, they asked Kirchoff her name and address. She balked, and they arrested her, maintaining that when a person being cited will not provide the necessary details, regular procedure requires the arrest. As Kirchoff tells the tale, the police knew who she was, so it was unnecessary for her to provide identification.

Because the police did not have a cell suitable for the two dogs, and the parakeet Kirchoff happened to have in hand, they escorted Kirchoff home, so that she could park her menagerie. At her home they found William Kirchoff, Anita's husband. Anita told her husband that she had been arrested; he responded with some unprintable remarks and punched officer Siwak. (Who started the scuffle will remain a mystery.) Apparently both William and Anita Kirchoff are skilled in karate (the police state that they have black belts), and the officers called for help. By the time help arrived in the person of Lt. Chausse and his paddy wagon, Flynn and Siwak had William Kirchoff in handcuffs. He had been kicked in the groin (self-defense, according to Flynn) and was bleeding about the head. William says that he was clobbered by a pair of handcuffs; Flynn maintains that the Kirchoffs' red macaw drew the blood when it landed on William's head during the fracas and started pecking. ²

William was trundled to the squadrol, and the police turned their attention back to Anita. All the police had left the house with William; while they were gone, Anita locked the door and refused to let them back in. The police say (and Anita denies) that they thrice asked her to open the door. The police ultimately kicked in the door and took Anita into custody. They left a neighbor and an unknown number of dogs, birds, and other animals to guard the Kirchoffs' house. William refused treatment at the hospital to which the police took him. Both Kirchoffs were booked and stayed in jail until the wee hours of the next morning. William spent ten hours in jail, Anita nine.

Anita was prosecuted for littering (dropping bird seed on the ground), feeding a bird, allowing her dogs to run unleashed, and resisting arrest (by locking herself into the house). The state judge convicted Anita of omitting the leash but otherwise acquitted her. The charge of feeding the pigeons had no legal basis. Section 30-7.6 of the park regulations states that "[n]o person shall feed animals in any zoo area except unconfined squirrels, sparrows, pigeons and ducks." Even if Washington Park is a "zoo area," Anita was on safe ground unless some robins or perhaps the parakeet hopped in for a meal. ³ The charge concerning the dogs was more substantial. Section 30-7 requires dogs and cats in the parks to be "continuously restrained by a leash not exceeding six (6) feet in length...." The penalty for allowing dogs to run unleashed in the park is time in the pound (for the dogs only), see Section 30-7.10. The prosecutor asked for 30 days, but the judge apparently sentenced these dogs to time served.

William Kirchoff was charged with obstructing the police in their arrest of Anita and with battery of officers Flynn and Siwak. He was acquitted on all counts.

This suit under 42 U.S.C. Sec. 1983 turned the tables. The complaint charged the officers with assault, battery, false arrest, and malicious prosecution, all in violation of the fourth, fifth, and fourteenth amendments, and with several pendent state claims. Without stating reasons, the district court granted Anita's motion for summary judgment with respect to liability. About a month before the trial the defendants offered $42,000 to settle the matter; the Kirchoffs held out for more. The jury fixed Anita's damages at $25,000 and ruled for the defendants on William's claims. See also $25,000 for the Birds, 71 A.B.A.J. 31 (June 1985). Neither side has appealed on the merits, so we shall not need to inquire why the court granted summary judgment in a case that apparently turns on whose story one believes. We also need not examine the $25,000 verdict, which is $2,778 for each hour Anita spent in custody.

The defendants missed a good bet when they neglected to make an offer of judgment under Fed.R.Civ.P. 68. The Kirchoffs recovered less than $42,000, so under Marek v. Chesny, --- U.S. ----, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985), an offer would have stopped the running of attorneys' fees. They did not, however, and the Kirchoffs' lawyers asked for fees of $49,732.50, representing 331.55 hours of work at $150 per hour. More than 180 of these hours came after the offer of settlement. The defendants argued that the request was excessive. William Kirchoff had lost outright, and Anita had won on liability without a trial. The time spent on William's claims should be excluded, the defendants contended. The case was marginally successful from the plaintiffs' perspective; no plaintiff is happy to take home only 60% of the last settlement offer. The defendants also challenged the hourly rate of $150 and the need to devote 332 hours (more than eight weeks of full time work) to litigating the events of May 8. One lawyer would have done; the plaintiffs used two for parts of the case. The defendants recomputed the hours and hourly fees, coming up with a proposed award of about $5,000.

Although the positions with respect to fees differed by an order of magnitude, the district court did not hold a hearing. Instead the judge decided the matter from the bench. After first remarking that he had not seen the agreement between the Kirchoffs and their lawyers concerning fees, he asked whether the agreement provided a contingent fee. One lawyer replied that it did: one-third if settled before the pretrial order, 40% if things went farther. The court then observed that the "beginning point ... should be a determination of the market value for the services" and concluded that the market value in a case such as this is the contingent fee.

Treating the case as a personal injury matter in which the constitutional foundation was window dressing, the court thought the state of the law "well settled ... for a number of years. These cases are today to the jurisprudence of the Federal Courts what FELA cases were forty, fifty years ago. They are personal injury cases with a Federal law underpinning. The marketplace for this type of litigation throughout my career at the bar has been the contingent fee contract."

The judge went on to explain that $50,000 was at all events an unsupportable request. William lost, so "[t]he time should be divided in half." More, "this was an easy case to try, an easy case to try.... [T]here just is no need for the two of you to try this case.... This was a fist-fight case and, indeed, you lost that aspect of it." The judge summed up:

When I take all of these factors into account, I believe that the contingent fee agreement which you reached with your clients is the fair measure of the fee in this case. You recovered a $25,000 award for Mrs. Kirchoff. She agreed to pay you forty percent of that. The philosophy of the Civil Rights Attorney's Fee Act is that she should recover her damages without incurring fees. That the defendant should pay her fees, if those fees are reasonable. So she shifts that forty percent of $25,000, or $10,000, to the defendants.

II

A court awarding fees under Sec. 1988 is supposed to compute the "market rate" for the attorneys' work and assess that reasonable fee against the defendants. Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Henry v. Webermeier, 738 F.2d 188 (7th Cir.1984). In the words of Henry, the rate should "simulate the results that would obtain if the lawyer were dealing with a paying client." 738 F.2d at 195. The district judge thought that 40% of the award is the "market rate" for cases of this type; it was, after all, the rate the Kirchoffs themselves negotiated. What could be a better gauge of the market than an actual transaction in it?

The judge never did read the contingent fee contract, and he got its provisions wrong. True, it entitled the lawyers to 40% of the award if the case went to trial. But this was the lawyers' entitlement against the Kirchoffs, not against the defendants. The contract also provided...