Amicus Curiae Brief — Farrar v. Hobby

No. 91-990

| IN THE

ee. Supreme Court of the Gnited States

ei OCTOBER TERM, 1991

he }

aa DALE FARRAR and PAT SMITH, ;

ei as Co-Administrators of the Estate of ‘

: Joseph D. Farrar, Deceased,

7 Petitioners, .

3 et vs.

® WILLIAM P. HOBBY, JR.,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AMICI CURIAE OF AMERICANS

yi FOR EFFECTIVE LAW ENFORCEMENT, INC., |

.. _ JOINED BY THE INTERNATIONAL ASSOCIATION i

ce OF CHIEFS OF POLICE, INC.

i. IN SUPPORT OF RESPONDENT. :

GEORGE J. FRANSCELL

rt Of Counsel: Counsel of Record -

\ WAYNE W. SCHMIDT CAROL D. JANSSEN

+ Americans for Effective FRANSCELL, STRICKLAND,

a Law Enforcement, Inc. ROBERTS & LAWRENCE

4 5519 N. Cumberland Ave. 225 S. Lake Avenue 7

* Suite 1008 Penthouse z

By Chicago, IL 60656 Pasadena, CA 91101 iS

a (818) 304-7830 a

A Attorneys for Amici Curiae :

pean Fane bere Appellate Brief Printers * (213) 613-1013 * (714) 720-1510 t.

— —@ + ——— —

BEST AVAILABLE COPY! °

No. 91-990

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

DALE FARRAR and PAT SMITH,

as Co-Administrators of the Estate of

Joseph D. Farrar, Deceased,

Petitioners,

vs.

WILLIAM P. HOBBY, JR..,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AMICI CURIAE OF AMERICANS

FOR EFFECTIVE LAW ENFORCEMENT, INC.,

JOINED BY THE INTERNATIONAL ASSOCIATION

OF CHIEFS OF POLICE, INC.

IN SUPPORT OF RESPONDENT.

GEORGE J. FRANSCELL

Of Counsel: Counsel of Record

WAYNE W. SCHMIDT CAROL D. JANSSEN

Americans for Effective FRANSCELL, STRICKLAND,

Law Enforcement, Inc. ROBERTS & LAWRENCE

5519 N. Cumberland Ave. 225 S. Lake Avenue

Suite 1008 Penthouse

Chicago, IL 60656 Pasadena, CA 91101

(818) 304-7830

Attorneys for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .

CONSENT OF PARTIES °

INTEREST OF AMICI

SUMMARY OF ARGUMENT ... .

ARGUMENT on © € 8 @¢ @ «

Page

I. PETITIONER IS NOT A

PREVAILING PARTY ENTITLED TO

ATTORNEY’S FEES PURSUANT TO

42 U.S.C. SECTION 1988

II. ATTORNEYS’ FEES SHOULD

NOT BE AWARDED TO A PLAINTIFF

WHO DID NOT SUSTAIN A

CONSTITUTIONAL INJURY

PROXIMATELY AND INTENTIONALLY

CAUSED BY DEFENDANT

A. An Award of

Attorneys’ Fees Would

Unjustly Punish Respondent

and Would not Deter Future

Violations of Constitutional

Ee ee ee ee ee

B. Denial of Attorneys’

Fees Would Not Undermine the

Purpose of § 1983 .....

CONCLUSION . .. +++ ++ © «© »

13

te.

ii

TABLE OF AUTHORIITES

Cases:

Carey v. Piphus,

435 U.S. 247,

98 S.Ct. 1042,

55 L.Ed.2d 252 (19738)

,

941 F.2d 1311

(Sth Cir. 1991) .

Hewitt v. Helms,

482 U.S. 755,

107 S.Ct. 2672,

96 L.Ed.2d 654 (1987)

Hudson v. McMillian,

U.S. P

112 S.Ct. 995,

117 L.Ed.2d 156 (1992)

’

944 F.2d 949

(lst Cir. 1991) .

Rhodes _v. Stewart,

488 U.S. 1,

109 S.Ct. 202,

102 L.Ed.2d 1 (1988)

953 F.2d 1152

(9th Cir. 1991)

953 F.2d 1152

(9th Cir. 1992)

’

Page

13

17

17

14

14

11

iii i

TABLE OF AUTHORITIES CONSENT OF PARTIES

(Continued)

Counsel have requested consent of

Cases: Page the parties. Consent was received by

Texas State Teachers both parties and filed with the Clerk of

Association v. Garland

’ this Court.

489 U.S. 782,

109 S.Ct. 1486,

103 L.Ed.2d 866 (1989) ..... 4, 5, 7

INTEREST OF AMICI

Americans for Effective Law

Statutes: Page

Enforcement, Inc. (AELE), is a national

42 U.S.C. § 1983 Passim

not-for-profit citizens organization.

42 U.S.C. § 1988 Passim

AELE is interested in establishing a

body of law making the law enforcement

effort more effective, ina

constitutional manner. It seeks to

improve the operation of the law

enforcement function to protect our

citizens in their life, liberty and

property, within the framework of the

various State and Federal Constitutions.

AELE has previously appeared as amicus

eRe

curiae over eighty times in the Supreme

Court of the United States and over

thirty-six times in other courts,

including the Federal District Courts,

the Circuit Courts of Appeal and various

state courts, such as the Supreme Courts

of California, Illinois, Ohio, and

Missouri.

The International Association of

Chiefs of Police, Inc., (IACP), is the

largest organization of police

executives and line officers in the

world, consisting of more than 14,000

members in 72 nations. Through its

programs of training, publications,

legislative reform, and amicus curiae

advocacy, it seeks to make the delivery

of vital police services more effective,

while at the same time protecting the

rights of all our citizens.

SUMMARY OF ARGUMENT

A plaintiff, in an action brought

under 42 U.S.C. § 1983, whose sole

recovery is one dollar in nominal

damages has not obtained a material

alteration of the legal relationship of

the parties and should not be entitled

to an award of attorneys’ fees pursuant

to 42 U.S.C. § 1988.

Nominal damages are often awarded

under § 1983 in circumstances in which

the plaintiff has not sustained any

damages or injury and the defendant has

not intentionally infringed important

constitutional rights. A manifest

injustice to the defendant results if

the defendant is forced to pay § 1988

attorneys’ fees to plaintiff, in

addition to defendant’s own litigation

a

expenses, despite the defendant’s

apparent victory. Denial of fees in the

instant case, and similar cases, would

not defeat the important goals

underlying §§ 1983 and 1988 of the

compensating and providing counsel for

plaintiffs injured by violations of

their constitutional rights by

defendants acting under color of law.

To qualify for "prevailing party"

status, a plaintiff must serve the role

of “private attorney general" intended

by Congress in enacting § 1988. Texas

State Teac} Lati sar land

Independent School District, 489 U.S.

782, 793, 109 S.Ct. 1486, 103 L.Ed.2d

866 (1989). Fee recovery should be

limited to those plaintiffs who obtain

compensatory damages or receive another

material alteration of the legal

-5-<

relationship between the parties.

ARGUMENT

ENTITLED TO ATTORNEY’S FEES PURSUANT TO

42 U.S.C. SECTION 1988.

The Court below held a plaintiff is

not entitled to attorney’s fees pursuant

to 42 U.S.C. Section 1988 when the sole

relief sought in a 42 U.S.C. 1983 action

is monetary damages and plaintiff is

awarded only one dollar in nominal

damages. Farrar v. Hobby, 941 F.2d 1311

(Sth Cir. 1991). Relying upon this

Court’s decisions in Hewitt v. Helms,

482 U.S. 755, 107 S.Ct. 2672, 96 L.Ed.2d

654 (1987), Rhodes v. Stewart, 488 U.S.

1, 109 S.Ct. 202, 102 L.Ed.2d 1

(1988) (per curiam), and Texas State

Teacher’s Association v. Garland

-6-

independent School District, 489 U.S.

782, 109 S.Ct. 1486, 103 L.Ed.2d 866

(1989), the Court stated that a

plaintiff must establish that plaintiff

won “at least some relief from the

defendant, that the outcome of the suit

changed the legal relationship between

the parties, and that the plaintiff’s

success was not de minimis or technical

victory." Farrar, 941 F.2d at 315.

The Fifth Circuit’s decision should

be affirmed because it correctly

interpreted and followed precedent

established by this Court. This Court

stated:

{[A}t a minimum to be

considered a prevailing party

within the meaning of Section

1988, the plaintiff must be

able to point to a resolution

of the dispute which changes

the legal relationship between

itself and the defendant . .

a technical victory may be so

insignificant ... as to be

-7<-

insufficient to support

prevailing party status .

{(w)here the plaintiff’s

success on a legal claim can

be characterized as purely

technical or de minimis, a

district court would be

justified in concluding that

even the ‘generous

formulation’ we adopt today

has not been satisfied.

Garland Independent School District, 489

U.S. 782, 792-93, 109 S.Ct. 1486, 103

L.Ed.2d 866 (1989) (emphasis added)

[citations omitted)

In Farrar, no material change in

the legal relationship resulted. The

jury found that Hobby did not

proximately cause Farrar’s injury. The

one dollar award does not alter the

legal relationship between the parties.

No award could be more de minimis.

The imposition of attorneys’ fees

pursuant to Section 1988 in cases where

either the defendant did not

intentionally or proximately cause the

plaintiff’s constitutional injuries

would have a detrimental impact on law

enforcement. Although the decision in

Farrar v. Hobby does not directly relate

to law enforcement, the decision will

affect Section 1983 suits brought

against law enforcement and

municipalities they serve.

In Farrar, plaintiff alleged then-

Lieutenant-Governor William Hobby was

partly involved in events which led to

«Reo

the closing of Artesia Hall, a facility

for teenagers operated by Farrar. The

jury found Hobby did not engage in a

conspiracy against the plaintiffs and

his actions were not the proximate cause

of plaintiff’s injury. Thus, no

evidence established that Hobby’s

actions caused a deprivation of

plaintiffs’ constitutional rights.

Hobby acted within his discretion as

Lieutenant-Governor.

The issue whether a plaintiff is

entitled to attorneys’ fees pursuant to

§ 1988 where plaintiff’s sole recovery

is nominal damages has been treated

differently by the various Court of

Appeals. An analysis of two cases,

Lewis v. Kendrick, 944 F.2d 949 (ist

Cir. 1991), and Romberg v. Nichols, 953

F.2d 1152 (9th Cir. 1991), and Romberg

-10-

v. Nichols, 953 F.2d 1152 (9th Cir.

1992) illustrates this point.

The court denied recovery of

attorneys’ fees in Lewis v. Kendrick,

944 F.2d 949 (1st Cir. 1991). Police

officers believed a call from a neighbor

that the plaintiff threatened the

neighbor with a knife. The case

involved a fifteen minute investigation

by officers, plaintiff’s arrest, and

incarceration of less than two hours.

Id. at 951. The Court stated that the

case was a “blow up of a routine street

arrest on a citizen’s call." Id. at

958. The court stated, "(t]jo turn a

single wrongful arrest into a half

year’s work, and seek payment therefor,

with costs, amounting to 140 times the

worth of the injury, is, to use a benign

word, inexcusable." Id. at 956.

-11-

In comparison, the Ninth Circuit’s

recent decision in Romberg v. Nichols,

953 F.2d 1152 (9th Cir. 1992), is

illustrative of the manifest injustice

in imposing § 1988 fees against a police

department or its officers where the

officer’s act in subjective good faith

and only nominal damages are awarded.

In Romberg, police officers believed

their entry into the Romberg’s apartment

was justifiable to save Mrs. Romberg

from serious harm. Id. at 1154. At

trial, only $1.00 in nominal damages of

the $2 million sought in the complaint

were awarded to plaintiffs. Id. at

1154-55. However, the Ninth Circuit

upheld the award of attorneys’ fees

against the sidieue.

The division in the Circuits

necessitates a definitive decision by

-12-

this Court on this issue. A decision in

favor of Petitioner would only serve to

encourage attorneys solely in pursuit of

their own fee recovery to bring actions

not involving important constitutional

rights and not involving an injured

plaintiff where the only possible

recovery for a plaintiff is $1.00 in

nominal damages. Counsel would be able

to recover exorbitant fees.' The

underlying purpose of § 1988 is to

enable injured plaintiffs to obtain

counsel and not "to enable counsel to

obtain munificent fees". Lewis, supra,

at 956.

: Plaintiffs in § 1983 actions’

brought against municipalities for

actions by their law enforcement agencies

often request hourly rates in the range

of $250.00 to $300.00 per hour and

further request a multiplier of that

amount.

ee

This court in Carey v. Piphus, 435

U.S. 247, 257, n.11, 98 S.Ct. 1042, 55

L.Ed.2d 252 (1978), recognized that an

award of attorneys’ fees pursuant to §

1988 “provides additional- and by no

means inconsequential- assurance that

the agents of the State will not

deliberately ignore due process rights".

(emphasis added). However, this

decision does not mandate a fee award in

this case. A fee award would not serve

to deter any future unconstitutional

behavior.

The decision in Carey established

to receive compensatory damages in a

Section 1983 action, the plaintiff must

sustain actual injuries caused by the

deprivation of constitutional rights. .

elge

Absent actual injury, only nominal

damages may be awarded. Id. at 266.

"(T)he basic purpose of a Section 1983

damages award should be to compensate

persons for injuries caused by the

deprivation of constitutional

rights ...." Id. at 254.

In the law enforcement arena,

officers may negligently or

unintentionally cause a constitutional

deprivation which may give rise to a

nominal damage award or one dollar jury

verdict, even though the officers and

the law enforcement agency did not

deliberately intend to violate an

individual’s rights. These situations

may arise in a variety of contexts,

including responding to apparent life

threatening situations as in Lewis and

Romberg, executing a search warrant, or

oe oor

==

stopping and detaining a suspect. An

award of attorneys’ fees would not deter

any future deprivation of constitutional

rights in these situations. Simply

stated, an award of attorneys’ fees

would unnecessarily punish the

municipality, and its taxpayers who

ultimately bear the burden of the cost,

for conduct which the officer believed

was reasonable.

B. Denial of Attorneys’ Fees Would

Not Undermine the Purpose of § 1983.

Affirming the Fifth Circuit’s

decision in Farrar will not dilute the

significance of this Court’s recent

opinion in Hudson v. McMillian, _ U.S.

__, 112 S.Ct. 995, 117 L.Ed.2d 156

(1992). This Court held that use of

excessive force against a prisoner which

does not result in a significant injury

-16-

may constitute cruel and unusual

punishment and support a claim under 42

U.S.C. Section 1983.’

The Fifth Circuit’s decision in

Hudson applied a “significant injury"

requirement before plaintiff can recover

under 42 U.S.C. Section 1983. This

Court reversed the Fifth Circuit and

found the extent of the plaintiff’s

injury provides no basis for dismissal

of a Section 1983 claim. The Court found

Hudson’s injuries, including bruises,

swelling, loosened teeth and a cracked

dental plate, “are not de minimis for

Eighth Amendment purposes." Id. at

1000. This Court in Hudson, indicated

its intolerance for police or

? AELE and the Department of Justice

submitted an amicus brief in Hudson vy.

McMillian in support of the inmate

plaintiff.

Sa Ae ee ee

“17

correctional officers brutality.

However, Hudson involved intentional

brutality causing actual injury which

would support an award of attorneys’

fees.

The Fifth Circuit in Farrar

emphasized their holding denying

attorney’s fees will not undermine the

importance of finding a constitutional

violation. 941 F.2d at 1315. Instead,

the Court found the sole object of

plaintiff’s suit was to recover monetary

damages and recovery of merely one

dollar does not support “prevailing

party” status under Section 1988. Id.

at 1315. Actions done within a

governmental official’s discretion in

subjective good faith with no intent to

cause a constitutional deprivation

should not support a fee award under

-18-

§ 1988 where the plaintiff is only

entitled to and receives nominal

damages.

CONCLUSION

Accordingly, Amici respectfully

request this Court affirm the decision

of the Court below and hold that a

plaintiff in a 42 U.S.C. § 1983 who

recovers only nominal damages is not

entitled to "prevailing party" status to

recover attorneys’ fees under 42 U.S.C.

§ 1988.

Date: June 12, 1992

FRANSCELL, STRICKLAND,

ROBERTS & LAWRENCE

George J. Franscell

Counsel of Record

a Se

Of Counsel:

Wayne W. Schmidt,

Esq.

Americans for

Effective Law

Enforcement, Inc.

5519 North Cumberland

Avenue

#1008

Chicago, Ill. 60656

Carol D. Janssen,

Esq.

Franscell, Strick-

land, Roberts &

Lawrence

225 South Lake Avenue

Penthouse

Pasadena, CA 91101

Counsel of Record:

George J. Franscell,

Esq.

Franscell, Strick-

land, Roberts &

Lawrence

225 S. Lake Avenue

Penthouse

Pasadena, CA 91101

(818) 304-7830