Charles Barnard v. Greg Theobald

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES BARNARD ; RITA No. 11-16625

BARNARD ,

Plaintiffs-Appellees, D.C. No.

2:03-cv-01524-

v. RCJ-LRL

GREG THEOBALD , #6527; GARY

CLARK, #6240; STEVEN

RADMANOVICH , # 6420, individually

and as Police Officers employed by

the Las Vegas Metropolitan Police

Department,

Defendants-Appellants,

and

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT , A political

subdivision of the State of Nevada,

Defendant.

2 BARNARD V . THEOBALD

CHARLES BARNARD ; RITA No. 11-16655

BARNARD ,

Plaintiffs-Appellants, D.C. No.

2:03-cv-01524-

v. RCJ-LRL

GREG THEOBALD , #6527; GARY

CLARK, #6240; STEVEN OPINION

RADMANOVICH , #6420, individually

and as Police Officers employed by

the Las Vegas Metropolitan Police

Department,

Defendants-Appellees,

and

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT , A political

subdivision of the State of Nevada,

Defendant.

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, Chief District Judge, Presiding

Argued and Submitted

February 15, 2013—San Francisco, California

Filed July 1, 2013

BARNARD V . THEOBALD 3

Before: Michael Daly Hawkins and Milan D. Smith, Jr.,

Circuit Judges, and James G. Carr, Senior District Judge.*

Opinion by Judge James G. Carr

SUMMARY**

Civil Rights

The panel affirmed the district court’s entry of judgment

on a jury verdict in an action alleging that police officers used

excessive force, but vacated the district court’s decision

reducing the attorneys’ fee award and denying plaintiffs pre-

and post-judgment interest.

The panel held that the district court properly denied the

officers’ motions for judgment as a matter of law because the

jury verdict was supported by substantial evidence, and the

officers were not entitled to qualified immunity. The panel

noted that the jury had found, by special interrogatory, that

the officers used an unreasonable amount of force and the

officers failed to meet the relevant burden necessary to

overturn the finding.

The panel held that the district court abused its discretion

where it reduced the amount of the fees award without

*

The Honorable James G. Carr, Senior District Judge for the U.S.

District Court for the Northern District of Ohio, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 BARNARD V . THEOBALD

explaining why a 40 percent reduction would be an

appropriate remedy. The panel further held that the district

court abused its discretion by denying post-judgment interest

because such an award is mandatory, and that the court’s

stated reasons for denying prejudgment interest appeared to

be questionable. The panel vacated those aspects of the

district court’s orders and remanded for further proceedings.

COUNSEL

Walter R. Cannon, Peter M. Angulo, and Thomas D. Dillard,

Jr. (argued), Olson, Cannon, Gormley & Desruisseaux, Las

Vegas, Nevada, for Defendants-Appellants–Cross-Appellees.

Paola M. Armeni (argued) and Margaret W. Lambrose,

Gordon Silver, Las Vegas, Nevada, for Plaintiffs-

Appellees–Cross-Appellants.

OPINION

CARR, Senior District Judge:

Charles Barnard (Charles) brought suit against Las Vegas

Metropolitan Police Officers Greg Theobald, Gary Clark, and

Steven Radmanovich (collectively, the Officers) for their

alleged use of excessive force in violation of the Fourth

Amendment. A jury found that the Officers’ use of force was

constitutionally excessive, and awarded Charles over $2

million in compensatory damages. In post-trial motions, the

Officers argued that the jury verdict could not stand because

they are entitled to qualified immunity. The Officers also

argued they are entitled to a new trial because of a plethora of

BARNARD V . THEOBALD 5

perceived prejudicial errors committed by the trial court.1

The district court denied the Officers’ motions. Because the

Officers are not entitled to qualified immunity, we affirm the

district court’s entry of judgment on the jury’s verdict.

However, we agree with Charles’s arguments—raised in his

cross-appeal—that the district court abused its discretion by

failing to adequately explain its decision to reduce the amount

of attorney fees awarded to Charles, and in denying Charles

pre-and post-judgment interest. Consequently, we reverse

those portions of the district court’s decision, and remand for

further proceedings consistent with this opinion.

FACTUAL BACKGROUND2

Around 11:30 p.m. on December 8, 2001, the Officers

arrived at the home of Charles and Rita Barnard (Rita) to

execute an arrest warrant. The warrant called for the arrest of

David Barnard (David), Charles’s brother, who was staying

with Charles and Rita.

Upon arrival at the Barnard residence, the Officers

knocked on the door, announced themselves as police

officers, and demanded entry. Charles opened the door and

came out on the landing. The Officers immediately

confronted him. All of the Officers had their weapons drawn,

and Officer Clark had his weapon pointed at Charles. At

1

W e resolve— and reject— the Officers’ trial error claims in the

memorandum disposition filed concurrently with this opinion.

2

Given the jury verdict for Charles, we present the facts “in a light most

favorable to him, resolving conflicts in his favor and giving him the

benefit of reasonable inferences.” Murphy v. F.D.I.C., 38 F.3d 1490, 1495

(9th Cir. 1994).

6 BARNARD V . THEOBALD

trial, Charles testified that the Officers appeared agitated, and

that they were “shaking, they’re screaming, yelling at me,

‘Hey, motherfucker, put your hands up, put your fucking

hands up.’” Charles put up his hands.

The Officers asked Charles to identify himself. Charles

told the Officers that his driver’s license was in his bedroom,

and asked the Officers to explain the purpose of their visit.

The Officers explained that they had a warrant to arrest

David. Charles told the Officers that David is his brother,

and that he was asleep inside the house. The Officers ordered

Charles to turn around and put his “fucking hands on the

wall.” Again, Charles complied.

Standing behind Charles, Officer Theobald seized

Charles’s right arm and handcuffed his right wrist. Before

Theobald could handcuff Charles’s other arm, however,

Theobald tripped on a flower pot that was on the Barnards’

landing. Theobald fell backward, still holding onto the

handcuffs that were attached to Charles’s right wrist. Officer

Radmanovich, who had been standing to Charles’s left,

grabbed for Charles’s left (free) arm as Charles was being

pulled down by Theobald, but Radmamovich tripped over

one of Charles’s legs, and all three men came crashing down;

Radmanovich on top of Charles, and Charles on top of

Theobald.

Officer Clark then joined the fracas. Clark came over to

Charles, who was still lying on top of Theobald, and put

Charles in a chokehold. Clark then tried to lift Charles up by

his neck. Theobald, however, still had hold of the handcuff

around Charles’s right wrist. The other officers yelled at

Theobald to release the cuff, which he did. Still holding

Charles by the neck, Officer Clark then lifted Charles even

BARNARD V . THEOBALD 7

higher off the ground and spun Charles around so that he was

on his hands and knees with Officer Clark straddling his

back. Charles testified that at some point during this time, his

“legs went numb.”

Clark kept Charles in a chokehold as he rode Charles to

the floor. While Clark was sitting on Charles’s back

restraining him in a chokehold, Officers Theobald and

Radmanovich ordered Charles to give them his

“motherfucking” arms. With Clark on top of him, however,

Charles could not comply with the Officers’ order. Officer

Theobald then instructed Clark to use his chemical agent (i.e.,

pepper spray) to gain Charles’s compliance. While still

sitting on Charles’s back, Officer Clark released the

chokehold and sprayed pepper spray into Charles’s face.

Clark then dropped his spray canister next to Charles. One of

the Officers immediately picked up the can and pepper-

sprayed Charles for a second time.

Soon thereafter, Officer Clark got off of Charles’s back,

and the other Officers handcuffed Charles’s arms behind him.

Both Officers Radmanovich and Theobald then dug one of

their knees into Charles’s back—Officer Radmanovich’s knee

pressed near Charles’s neck and shoulders, and Officer

Theobald’s pressed into Charles’s lower back.

At this point, Rita came to the front door to investigate the

disturbance. Officer Clark ordered her to “put your fucking

hands up, [and] get on the fucking wall.” Clark then asked

Rita to identify herself. Rita identified herself as Charles’s

wife.

Finally, David came to the front of the house. Officer

Radmanovich got off of Charles in order to secure David.

8 BARNARD V . THEOBALD

Meanwhile, Officer Theobald slid his knee up Charles’s back

towards his neck. For the next few minutes, as Officers Clark

and Radmanovich secured the scene, Theobald kept his knee

pressed firmly into the back of Charles’s neck and shoulders.3

Charles repeatedly asked Theobald to get off of his neck, and

told Theobald that he was in considerable pain. But Theobald

refused to relent. Eventually, after the other Officers had

secured David in the back of a police car, Theobald released

his knee from the back of Charles’s neck. Charles was taken

to Clark County Detention Center, where he was held for

three days on charges of battery on a police officer, resisting

an officer, and obstructing a public officer.4

The same morning Charles was released from jail, he

sought medical treatment at University Medical Center.

Charles complained to the attending physician of severe pain

in his hip, neck and shoulders. A week later, Charles returned

to the same doctor because his pain had still not subsided.

Charles was referred to a specialist, who further referred

Charles to physical therapy. But physical therapy was not

enough to alleviate Charles’s pain and other symptoms.

Ultimately, over the course of many years, Charles underwent

nine spinal surgeries in an effort to relieve the various

symptoms he claims were caused by his encounter with the

3

The Officers struggled to secure the scene because David, an ex-police

officer and United States Marine, apparently took umbrage at the Officers’

aggressive tactics in restraining him and his brother.

4

Charles was never convicted of any criminal offense related to the

December 8 incident.

BARNARD V . THEOBALD 9

Officers. As of the time of trial, Charles’s symptoms had still

not subsided.5

PROCEDURAL BACKGROUND

Charles brought suit against the Las Vegas Metropolitan

Police Department (LVMPD) and the Officers on December

5, 2003. Charles alleged that the Officers arrested him

without probable cause, and used excessive force in making

his arrest. Charles further alleged that the LVMPD was

vicariously liable for the Officers’ actions.

In March 2007, then-United States District Judge Brian

Sandoval granted LVMPD’s and the Officers’ motions for

summary judgment and entered judgment in favor of the

defendants. A panel of our court affirmed in part, reversed in

part, and remanded. See Barnard v. Las Vegas Metro. Police

Dep’t., 310 F. App’x 990, 994 (9th Cir. 2009). Specifically,

we affirmed the district court’s grant of summary judgment

to the Officers on Charles’s false arrest claim after finding the

Officers were entitled to qualified immunity. Id. at 992. We

also affirmed the district court’s grant of summary judgment

to the LVMPD on the basis that municipal liability in § 1983

actions cannot be based on vicarious liability.6 Id. at 992–94.

However, we reversed the district court’s grant of summary

judgment to the Officers on Charles’s excessive force claim.

We explained that the Officers were not entitled to qualified

immunity because, “construing the evidence in the light most

favorable to the plaintiff” at “the time of the incident at issue

5

“Q: Chuck, as you sit here today, can you tell us how you feel as far as

painwise [sic]? A: It kills me. It’s constant.”

6

See generally Cameron v. Craig, 713 F.3d 1012, 1023 (9th Cir. 2013).

10 BARNARD V . THEOBALD

here, a reasonable officer would have known it violated

clearly established law to use a choke hold on a non-resisting

arrestee who had surrendered, pepper-spray him, and apply

such knee pressure on his neck and back that it would cause

the collapse of five vertebrae in his cervical spine.” Id. at

993. We thus remanded Charles’s excessive force claim for

trial.

Trial began on January 24, 2011, and lasted seven days.

At the conclusion of the plaintiff’s case-in-chief, the Officers

moved for a directed verdict under Federal Rule of Civil

Procedure 50(a). The principal basis of the Officers’ motion

was that the amount of force used was “exceptionally

reasonable under the circumstances,” and, in any event, the

Officers could have reasonably believed that Charles was

resisting arrest.7 The district court denied the Officers’

motion in relevant part.

After the close of evidence and the receipt of jury

instructions, the district judge submitted the following special

interrogatories to the jury, and the jury returned the verdicts

indicated in brackets:

1) Did Charles Barnard forcibly resist when

the officer Defendants attempted to handcuff

him on December 8, 2001? [No.];

7

The Officers also moved for a direct verdict on the issue of punitive

damages. The district court agreed with the Officers that there was

insufficient evidence to show that the Officers acted with malice or

deliberate indifference towards Charles’s constitutional rights, and so

granted the Officers’ motion with respect to the (un)availability of

punitive damages. Charles does not appeal that ruling.

BARNARD V . THEOBALD 11

2) If your answer to Question 1 above is

“No,” did the officer Defendants make a

reasonable mistake of fact that he was forcibly

resisting arrest? [Yes.];

3) Did the following Defendants violate

Charles Barnard’s Fourth Amendment rights

by using excessive force in seizing him in his

home on December 8, 2001? [Yes as to all

defendants.]; and

4) What amount of damages did the

defendants cause Charles Barnard to incur?

[$2,111,656.52].

After the verdict, the Officers filed renewed motions for

judgment as a matter of law pursuant to Federal Rule of Civil

Procedure 50(b). Once more, the Officers argued that they

were entitled to qualified immunity. The Officers also filed

a Rule 50(b) motion attacking the evidentiary sufficiency of

the jury verdict, and another motion—brought pursuant to

Federal Rule of Civil Procedure 59(a)—alleging that trial

errors warranted a new trial or, alternatively, remittitur. For

his part, Charles filed a motion for attorney fees pursuant to

42 U.S.C. § 1988.

On June 7, 2011, the district court denied the Officers’

motions for judgment as a matter of law. The district court

did, however, agree with the Officers that Charles’s pain and

suffering award was excessive, and directed that such

“damages should be reduced by $500,000 and that a just and

reasonable amount of damages for pain and suffering should

bring the verdict to $1,611,656.52.” Charles accepted the

remittitur.

12 BARNARD V . THEOBALD

The district court also granted in part Charles’s motion for

attorney fees. Charles had requested an award of $315,505 in

attorney fees and $61,408.80 in costs. The district court

granted Charles the full amount of his costs, but reduced the

attorney fees award by 40 percent, to $189,303.

On August 8, 2011, the district court entered judgment in

favor of Charles. The judgment included the remittitur sum

of $1,611,656.52, and provided that prejudgment interest was

to be paid at the rate of 3.25% and post-judgment interest at

the rate of 4%. The Officers then filed a motion for

reconsideration, arguing that the award of both pre-and post-

judgment interest was improper. The district court agreed

with the Officers regarding prejudgment interest. In one

paragraph of analysis, the district court explained that

prejudgment interest may not be appropriate when applied to

an award of non-economic damages. The court also reasoned

that prejudgment interest was inappropriate because it was

unclear which portion of Charles’s award, if any, was

intended to compensate him for future pain and suffering.

The implication of the district court’s order is that

prejudgment interest should be unavailable whenever a jury

returns a general verdict that does not distinguish between

past and future compensation. The district court’s order did

not address Charles’s entitlement to post-judgment interest.

Nevertheless, the district judge entered an amended judgment

that provided for neither pre- or post-judgment interest. Both

Charles and the Officers timely appealed.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the district court’s denial of a renewed motion for

judgment as a matter of law. Josephs v. Pac. Bell, 443 F.3d

BARNARD V . THEOBALD 13

1050, 1062 (9th Cir. 2005). We must view the evidence in

the light most favorable to the nonmoving party, here

Charles, and draw all reasonable inferences in his favor. Id.;

see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 149–50 (2000). “The test applied is whether the

evidence permits only one reasonable conclusion, and that

conclusion is contrary to the jury’s verdict.” Josephs,

443 F.3d at 1062.

We review the district court’s decision to award attorney

fees, and its method of calculation, for abuse of discretion.

Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1059

(9th Cir. 2006). Similarly, a district court’s decision whether

to award pre- or post-judgment interest is reviewed for abuse

of discretion. Citicorp Real Estate, Inc. v. Smith, 155 F.3d

1097, 1107 (9th Cir. 1998).

DISCUSSION

I. Qualified Immunity

Qualified immunity “protects government officials from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (citation omitted).

“[T]he Supreme Court set forth a two-part test for qualified

immunity in excessive force cases. First, we examine

whether a Fourth Amendment violation occurred; second, we

look to see whether the officers violated clearly established

law.” Cameron v. Craig, 713 F.3d 1012, 1020 (9th Cir. 2013)

(quoting Santos v. Gates, 287 F.3d 846, 855 n.12 (9th Cir.

2002)).

14 BARNARD V . THEOBALD

The Officers advance two theories to explain why they

are entitled to qualified immunity. First, they contend that

their use of force was objectively reasonable as a matter of

law, and thus no Fourth Amendment violation occurred.

Second, the Officers argue that they are entitled to qualified

immunity because the jury expressly found that the Officers

made a “reasonable mistake of fact that [Charles] was

forcibly resisting arrest.” Neither theory is availing.

We have already rejected the Officers’ first contention

that their conduct was objectively reasonable as a matter of

law. In reversing the district court’s grant of summary

judgment, we concluded “that the plaintiff tendered sufficient

evidence to demonstrate a triable issue of fact on his

excessive force claim against the individual officers.”

Barnard, 310 F. App’x. at 993. That is, we concluded that if

the jury believed Charles, the evidence likely to be presented

at trial could establish a constitutional violation because the

Officers’ conduct was not per se reasonable. We reject the

Officers’ invitation to revisit that decision.

Even more fundamentally, a jury has now expressly

decided that the Officers’ conduct was unreasonable in light

of the actual evidence Charles presented at trial. We have

held repeatedly that “[b]ecause questions of reasonableness

are not well-suited to precise legal determination, the

propriety of a particular use of force is generally an issue for

the jury.” Cameron, 713 F.3d at 1021 (quoting Chew v.

Gates, 27 F.3d 1432, 1440 (9th Cir. 1994)). Here, the jury

found—by special interrogatory—that all of the Officers in

this case used an unreasonable amount of force against

Charles.

BARNARD V . THEOBALD 15

The Officers ask us to overturn this finding, but do not

even come close to meeting the relevant burden necessary for

us to do so. We review a jury verdict to determine whether

it is supported by substantial evidence, and we may overturn

a jury’s verdict in those rare cases where the evidence

“permits only a conclusion contrary to [that] verdict.”

McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000); see

also Hangarter v. Provident Life & Accident Ins. Co.,

373 F.3d 998, 1008 (9th Cir. 2004). But as noted above, we

already held at the summary judgment stage that Charles’s

evidence could sustain a jury verdict in his favor. Barnard,

310 F. App’x. at 993. Now that Charles has presented that

very same evidence to the jury, and the jury has accepted it,

we cannot properly hold that the evidence in the record

“permits only a conclusion contrary to the jury’s verdict.”

McLean, 222 F.3d at 1153.

The Officers’ alternative argument fares no better. At

bottom, the Officers claim that if Charles was actually

resisting, or if the Officers could have reasonably believed

that he was resisting, then the Officers are entitled to

qualified immunity as a matter of law. Completing the

Officers’ syllogism, the Officers must be entitled to qualified

immunity because the jury specifically found that “the officer

Defendants [made] a reasonable mistake of fact that [Charles]

was forcibly resisting arrest.”

The Officers are simply mistaken in their understanding

of the law. Resistance, or the reasonable perception of

resistance, does not entitle police officers to use any amount

of force to restrain a suspect. See LaLonde v. Cnty. of

Riverside, 204 F.3d 947, 959 (9th Cir. 2000) (“[I]f the extent

of the injury to [plaintiff’s] back is serious enough, a jury

could conclude that [the officer] used force in excess of what

16 BARNARD V . THEOBALD

was reasonable, even if [plaintiff] had been resisting at the

time.”); see also Santos, 287 F.3d at 853 (“[E]ven where

some force is justified, the amount actually used may be

excessive.”). Rather, police officers who confront actual (or

perceived) resistance are only permitted to use an amount of

force that is reasonable to overcome that resistance.8 Here,

the jury concluded that the amount of force used by the

Officers was unreasonable, even in light of their mistaken

belief that Charles was resisting.9

II. Attorney Fees

42 U.S.C. § 1988 “provides that in federal civil rights

actions the court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable attorney’s fee

as part of the costs.” Hensley v. Eckerhart, 461 U.S. 424, 426

(1983) (internal quotation marks and citation omitted).

Congress passed § 1988 “to attract competent counsel to

prosecute civil rights cases.” Mendez v. Cnty. of San

Bernadino, 540 F.3d 1109, 1126 (9th Cir. 2008) (citation

omitted). Consequently, “a court’s discretion to deny fees

8

It is for this reason that Charles brought a claim for the Officers’

“excessive use of force” as opposed to merely the Officers’ “use of force.”

9

On appeal, the Officers have not challenged whether the right to be

free from their unreasonable actions was clearly established, that is,

whether the officers made a “reasonable mistake as to the legality of their

actions.” Saucier v. Katz, 533 U.S. 194, 206 (2001), overruled on other

grounds by Pearson, 555 U.S. at 236. Because “[t]his court ‘will not

ordinarily consider arguments that are not specifically and distinctly raised

and argued in appellant’s opening brief,” Padgett v. Wright, 587 F.3d 983,

985 n.2 (9th Cir. 2009) (per curiam) (quoting Int’l Union of Bricklayers

& Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc.,

752 F.2d 1401, 1404 (9th Cir. 1985)), we decline to consider such an

argument here.

BARNARD V . THEOBALD 17

under § 1988 is very narrow and . . . fee awards should be the

rule rather than the exception.” Id. (quoting Herrington v.

Cnty. of Sonoma, 883 F.2d 739, 743 (9th Cir. 1989)) (internal

quotation marks omitted).

Charles submitted bills for $315,505 in attorney fees and

$61,408.80 in costs. The district court awarded Charles the

full amount of his costs, but reduced the attorney fees award

by 40 percent, to $189,303. The court explained the basis for

its reduction as follows:

In calculating the lodestar, the Court will

accept the rates proffered by movants but will

not accept all hours as reasonable. The case

was not particularly complicated, and

discovery had closed when movants took the

case. The litigation history of the case was

neatly laid out for the parties in the electronic

record. Movants had merely to review the

record as it stood before trial, and apart from

responding to a motion in limine, they needed

only prepare for trial itself. Over 600 attorney

hours and 200 paralegal/assistant hours in

preparation for a single-claim excessive force

trial after pretrial practice is complete is

excessive. The trial itself took roughly fifty

hours. The Court will therefore reduce the

claimed hours by 40% in calculating the

lodestar to be $189,303 and will not apply a

multiplier.

“We have long held that district courts must show their

work when calculating attorney’s fees.” Padgett v.

Loventhall, 706 F.3d 1205, 1208 (9th Cir. 2013). Failure to

18 BARNARD V . THEOBALD

thoroughly explain the basis for an attorney fees award is

problematic because without such an explanation, “it is

simply not possible for this court to review such an award in

a meaningful manner. Absent some indication of how the

district court’s discretion was exercised, this court has no way

of knowing whether that discretion was abused.” Id. (quoting

Chalmers v. City of L.A., 769 F.2d 1205, 1213 (9th Cir.

1986)).

Here, the district court found that the hours billed by

Charles’s attorneys were “excessive,” and reduced the

amount of the fees award by 40 percent. But while the

district judge explained why he thought the award was

excessive, he failed to explain why he thought that a 40

percent reduction would be an appropriate remedy.

Furthermore, while the district court considered the amount

of time it believed plaintiffs’ attorneys should have spent on

the case in light of the case’s complexity, it is not clear

whether the trial court adequately considered Charles’s

“degree of success,” which the Supreme Court has explained

is “the most critical factor” in determining an appropriate

amount of attorney fees. Hensley, 461 U.S. at 436.

Consequently, we must vacate the fees award and remand10

for a more complete explanation.11

10

On remand, we do not direct that the district court reach any particular

result in awarding Charles’s attorney fees. As we have explained,

however, the district court must adequately specify its reasons for

alighting on whatever figure it ultimately selects. Padgett, 706 F.3d at

1208–09. “It is worth repeating that since the district court is already

doing the relevant calculation, it is a small matter to abide by the

injunction of the arithmetic teacher: Show your work!” Id. at 1208

(internal quotation marks, citiation, and alterations omitted).

11

All pending motions for judicial notice are denied as moot.

BARNARD V . THEOBALD 19

III. Judgment Interest

Although the district court initially entered a judgment

that provided for both pre- and post-judgment interest, its

amended judgment provides for no interest whatsoever. With

respect to post-judgment interest, this was a clear abuse of the

district court’s discretion: Under 28 U.S.C. § 1961, the award

of post-judgment interest on a district court judgment is

mandatory. See Air Separation Inc. v. Underwriters at

Lloyd’s of London, 45 F.3d 288, 289–90 (9th Cir. 1995)

(holding that post-judgment interest is mandatory, and noting

that the“[f]ailure to award post[-]judgment interest would

create an incentive for defendants to exploit the time value of

money by frivolously appealing or otherwise delaying

payment.”). Consequently, we remand to the district court

with instructions to award Charles appropriate post-judgment

interest.

On remand, the district court may also wish to reconsider

its decision to deny Charles prejudgment interest. For while

the ultimate decision whether to award prejudgment interest

lies “within the court’s sound discretion, to be answered by

balancing the equities,” Wessel v. Buhler, 437 F.2d 279, 284

(9th Cir. 1971), the court’s stated reasons for denying

prejudgment interest in this case appear to be questionable.

First, the district court seemed to suggest that

prejudgment interest is not appropriate when applied to an

award of non-economic damages. This is incorrect. We have

held that prejudgment interest is an element of compensation,

not a penalty. See Schneider v. Cnty. of San Diego, 285 F.3d

784, 789 (9th Cir. 2002) (explaining that prejudgment interest

“serves to compensate for the loss of use of money due as

damages from the time the claim accrues until judgment is

20 BARNARD V . THEOBALD

entered, thereby achieving full compensation for the injury

those damages are intended to redress.”). Non-economic

damages awarded for a plaintiff’s pain and suffering are “just

as much an ‘actual loss’ (for which prejudgment interest is in

order)” as purely economic damages. See Murphy v. City of

Elko, 976 F. Supp. 1359, 1364 (D. Nev. 1997). Thus, to the

extent the district court denied prejudgment interest because

it thought such interest is unavailable for non-economic

damages, the district court abused its discretion.

Second, the district court refused to award prejudgment

interest because the jury returned a general verdict that did

not distinguish between past and future damages. Because

the district court believed that interest should not be awarded

with respect to future damages, the district court refused to

grant interest on any portion of the award. On remand, the

district court should consider the balance of the equities in

making this determination, including whether it may be

advisable to award prejudgment interest on a prorated portion

of the award. For instance, the district judge may consider

whether it is appropriate to award prejudgment interest for at

least that portion of the award that was likely given to Charles

in order to compensate him for his past pain and suffering and

medical expenses.12

12

The district court noted that the jury award of $2,111,656.52 was

exactly the sum of two figures Charles’s attorneys requested, $219,496.52

in past medical damages and $1,892,160 in pain and suffering damages.

At a minimum, then, the district court could properly award prejudgment

interest on the $219,496.52 requested (and presumably awarded) as

medical damages. And the district judge would also have discretion to

further prorate the damages award in order to provide interest on that

portion of the award that was intended to compensate Charles for the pain

and suffering he endured between the day of his injury and the day

judgment was entered.

BARNARD V . THEOBALD 21

CONCLUSION

The district court properly denied the Officers’ motions

for judgment as a matter of law because the verdict is

supported by substantial evidence, and the Officers are not

entitled to qualified immunity. The district court abused its

discretion, however, where it awarded attorney fees without

adequately explaining the basis of its award, and where it

denied Charles pre- and post-judgment interest. We thus

vacate those two aspects of the district court’s orders and

remand for further proceedings consistent with this opinion.

Costs on appeal to plaintiff. Fed. R. App. P. 39(a)(4).

AFFIRMED IN PART, REVERSED IN PART,

VACATED, AND REMANDED.