Petition for Writ of Certiorari — Trevino v. Gates

(\ PILE D

No. 961 079 JAN 3 1997.

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

*

JOHANNA TREVINO, a minor,

Petitioner,

V.

DARYL GATES, TOM BRADLEY, HERBERT

BOECKMANN, JERRY BROOKS, JOSEPH CALLIAN,

MICHAEL SIRK, RICHARD SPELMAN, GARY

STRICKLAND, JAMES TIPPINGS, RICHARD

ZIERENBERG, MANUEL AVILA, CHARLES BENNETT,

BRIAN DAVIS, JOHN FRUGE, JOSEPH FREIA, EDWARD

GUIZA, PETER SANCHEZ, REGINALD WEAVER,

JAMES TOMA, C.S. WINSTON, PHILIP WIXON, GARY

ZERBEY, JOEL WACHS, JOY PICUS, JOHN FERRARO,

ZEV YAROSLAVKSY, RUTH GALANTER, ERNANI

BERNARDI, NATE HOLDEN, MARVIN BRAUDE, HAL

BERNSON, MICHAEL WOO, JOAN FLORES, CITY OF

LOS: ANGELES, all in both their individual and official

capacities; and CITY OF LOS ANGELES,

Respondents.

¢

On Petition For Writ Of Certiorari

To The Court Of Appeals For The Ninth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

e

GeorcE C. PRattT STEPHEN YAGMAN

PARNON & PRatT Counsel of Record

10 Rockefeller Plaza Marion R. YAGMAN

New York, New York 10020 YAGMAN & YAGMAN, P.C.

(212) 698-7980 723 Ocean Front Walk

Venice, California 90291-3270

RAMSEY CLARK

LAWRENCE W. SCHILLING (310) 452-3200

36 East 12th Street Attorneys for Petitioner,

New York, New York 10003 Johanna Trevino

(212) 475-3232

Of Counsel

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Om

QUESTIONS PRESENTED

1. May a public entity other than a state indemnify

police for punitive damages awarded in federal civil

rights actions without undermining the deterrent purpose

of 42 U.S.C. § 1983 (1982)?

2. May a local government decision to pay punitive

damages for its police serve as a basis to impose Section

1983 liability against the government and its officials,

based on a theory of ratification or custom?

il

TABLE OF CONTENTS

— eo aan aaa RPT T, —

Page

PETITION FOR WRIT OF CERTIORARI............ 1

oppuon ge. OS ee 1

SIRUMCTOON «cs osc ee ee 1

STATUTES INVOLVED .........:- 2. 1

StAMGMENT 5... os ee 3 i

REASONS FOR GRANTING THE PETITION....... 6

CORR ASG 5 0s. as eseucu ee ews ae 24

lil

TABLE OF AUTHORITIES

Page

CASES

Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.

Eee, Fi aig ikee dba oa Rbw dS beke Shek ob oben eds 14

Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961)........ 15

Carey v. Piphus, 435 U.S. 247 (1978) ...............5. 15

City of Newport v. Facts Concerts, Inc., 453 U.S. 247

eta acae ved nek Sind * a 94-40% v0 « 8, 16, 24, 25

Cornwell v. City of Riverside, 896 F.2d 398 (9th Cir.),

cert. denied, 497 U.S. 1026 (1990).............. passim

Derechin v. State Univ. of New York, 963 F.2d 513 (2d

rs ce calcu Wi lise Ua éb.0.¢esceeeccovelicnen 20

Electrical Workers v. Foust, 442 U.S. 42 (1979)....... i

Gomez v. Gates, 804 F. Supp. 69 (C.D. Cal. 1992)...... 4

Guillory v. County of Orange, 731 F.2d 1379 (9th Cir.

CO eK bbe bdo hw 5 Neb kG yee de ence use scenes 8

La Raza Unida v. Volpe, 545 F. Supp. 36 (D. Cal.

RERUN UVR ERG ce dP ORS OWES ieven dae vvcencecees 14

Martinez v. California, 444 U.S. 277 (1980)........... 8, 9

Owen v. City of Independence, 445 U.S. 622 (1980) ..... 7

Owens v. Okure, 488 U.S. 235 (1989)................. 16

Pavelic & LeFlor v. Marvel, 493 U.S. 120 (1990)....... 19

Robertson v. Wegmann, 436 U.S. 584 (1978)........... 14

Smith v. Wade, 461 U.S. 30 (1983) ................... 15

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

NN BL Ding w ale y a Cah op iakbiVew veda coese cs 15

iv

TABLE OF AUTHORITIES — Continued

Trevino v. Gates, 23 F.3d 1480 (9th Cir.), cert. denied

sub nom. Wachs v. Trevino, 115 S.Ct. 32 (1994) ...... 1

Trevino v. Gates, 798 F.Supp. 621 (C.D. Cal. 1992);

888 F.Supp. 1509 (C.D. Cal. 1995), aff'd in part,

100 E TA POE, Fe Tk ERs be B86 ees Reece Cin eaes 1

Wilson v. Garcia, 471 U.S. 261 (1985).............. 15, 16

CONSTITUTION, STATUTES AND CODES

United States Constitution, art. VI] .................. 11

ey Sc Oh REE oo re cho ecece sees li ccs eee encaeweel 1

veh Cae Be, reer ere rte oe passim

OIA ae | Serre rere Perret ere 13, 14, 15

Cal. Govt. Code (West 1996)

DS Gee oa ove ee drn beet ee ven 2, 5, 12, 15-17, 19, 24

Cal. Goowt os © lee ss caceviveicehcciv ets cas 8

Cal. Set, Cae Bae ok xk seve windeecisaauvies 8

Colo. Rev. Stat. § 24-10-114, 24-10-118[5] [1996]...... 12

Ill. Rev. Stat. ch. 745 § 10/2-302 [West 1996]........ 12

Kan. Stat. Ann. § 75-6109 [1996] ... we cece ees es cnes 12

Md. Cts. and Jud. Proc. § 5-403 [1984].............. 12

Me. Rev. Stat. Ann. tit. 14 § 8112 [1996] ............ 12

Minn. Stat. § G6G.07 TISPBi ns otic ccc vesetccssusews 12

Neb. Rev. Stat. § 81-8.239.05 [1996].................. 12

PED. Cm SS HES Be Flees vias e'cec ceca cuevebedus 12

N.J. Rev. Stat. § 59:10-1 [1996] .......... 0c. cee eee aes 12

—-

TABLE OF AUTHORITIES - Continued

Page

Nj: Bev. it: 6:04 See 12

N.Y. Gen. Mun. Law § 50-j [McKinney 1996]........ 12

N.Y. Pub. Off. Law [West 1996] § 18................ 12

Coes UG Oe BROUES Cilicia ee ee 12

OE Se BS EE i oh kee es Pk ee eeu 12

Ohio Rev. Code Ann. § 9.87 [Baldwin 1996]......... 12

ne Bey. Code Amn. © 2774607 occ cn cs cssscse vane 12

vi. Come Amn. 0.10 6 102 (1096) oii cccickdncss dias 12

OTHER AUTHORITIES

Devitt and Blackmar, Federal Jury Practice and

RU UMNO CIE NOI Soe 6 vaio cos psu ee eee 8

rm. Civ, F. (West 1996) Rule 11.............. my ah, oo

PETITION FOR WRIT OF CERTIORARI

Johanna Trevino, a minor, petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit.

S

OPINION BELOW

The opinion of the Court of Appeals is reported at 99

F.3d 911 (9th Cir. 1996) (App. A, 1a-30a).

Previously, this case came before this Court on

respondent Los Angeles city council members’ Petition

for Certiorari to review the Ninth Circuit’s denial of their

claim of absolute immunity. Trevino v. Gates, 23 F.3d 1480

(9th Cir.), cert. denied sub nom. Wachs v. Trevino, 115 S.Ct.

32 (1994). See also, Trevino v. Gates, 798 F.Supp. 621 (C.D.

Cal. 1992); 888 F.Supp. 1509 (C.D. Cal. 1995), aff'd in part,

rev'd in part, 99 F.3d 911.

JURISDICTION

The judgment of the Court of Appeals was entered

on November 1, 1996, and this Court’s jurisdiction is

invoked pursuant to 28 U.S.C. § 1254(1).

+

STATUTES INVOLVED

Section i of the Ku Klux Klan Act of April 20, 1871,

as amended, 42 U.S.C. § 1983 (1982), provides, in perti-

nent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State of Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress.

California Government Code (West 1996) Section

825(b) provides, in pertinent part, as follows:

Notwithstanding . . . any other provision of law,

a public entity, other than the state . . . is autho-

rized to pay that part of a judgment that is for

punitive damages if the governing body of that

public entity, acting in its sole discretion, finds

all of the following. .. . [The judgment is against

an employee who acted within the course and

scope of employment and in good faith, without

actual malice, and in the apparent best interests

of the public entity.]?

1 Typically, a city attorney who defended the losing police

at trial makes the case to the city council that the jury reached a

wrong verdict, and that the city council should make the finding

required by this Section and indemnify the officer for punitive

damages. The inherent, serious ethical conflict of interest

presented by this dual legal representation has resulted in

indemnification of punitive darmages for Los Angeles police

officers in nearly 40 cases — virtually every one that has come

before the Los Angeles city council.

a

—_—~"

STATEMENT

The State of California has made possible the aboli-

tion of payment of punitive damages by Los Angeles

police in federal civil rights actions and certiorari should

be granted to stop this state annulment of federal law.

Petitioner Johanna Trevino (Trevino), a six-year-old,

was in utero on February 12, 1990 when eight members of

the Los Angeles Police Department Special Investigations

Section (S.1.S.), publicly and commonly known as a

“death squad,” trapped her unarmed father in the rear

seat of an automobile and executed him with a coup d’

Jarnac, by blowing off the back of his head with a shot

from 18 inches away.

The members of this squad of about 20 officers: have

admitted killing at least 19 persons in the last eight years;

killed at least 28 persons in the last 14 years; and,

wounded seriously at least 28 others in that same time

period, all in shootings. Only one such person has, on

post mortem examination, been found to have had a

bullet entry wound any place other than in the rear of his

or her body.

Trevino was born within the next week, and brought

a federal civil rights action against respondents City of

Los Angeles, Los Angeles’ then-chief of police, Daryl

Gates, the police who murdered her father, City council

members who had voted to indemnify Gates and the

police for punitive damages awarded against them in a

prior action based on the same conduct by both Gates and

the same police, and various Los Angeles city officials.

Relatives of two other men whom the same police

murdered at the same time, as well as Trevino’s grand-

mother, and the one man in the car who was shot and

seriously wounded but who survived, previously had

brought and prevailed in an action against Gates and the

death squad members, see Gomez v. Gates, 804 F. Supp. 69

(C.D. Cal. 1992), and it was held that Trevino was entitled

to prevail at her trial on the issues of liability and the

amount of punitive damages based on res judicata. Her

case was tried only on the issue of compensatory or

nominal damages, and pursuant to the district court's

pre-trial, res judicata finding on the amount of punitive

damages, respondent City of Los Angeles paid those

damages for respondents Gates and police officers, as

they had done in Gomez.

Trevino contended that liability could be imposed

against respondents City and its council members on the

ground that they ratified the police malicious and oppres-

sive conduct (which were the bases for the awards of

punitive damages in Gomez, supra) by voting and agree-

ing to pay the punitive damages awarded against Gates

and the police in Gomez. The court below held, based on

its opinion in Cornwell v. City of Riverside, 896 F.2d 398,

399 (9th Cir.), cert. denied, 497 U.S. 1026 (1990) (munici-

pality’s payment of punitive damages to indemnify its

police does not violate federal law), that indemnification

of punitive damages could not serve as a basis for impo-

sition of Section 1983 liability based on a theory of rat-

ification. In Cornwel!, the plaintiff contended that

indemnification of punitive damages was impermissible.

Trevino claims that indemnification of punitive damages

properly may be a basis for imposition of Section 1983

+ Ne RTT C9

ene ee

liability, based on a theory of ratification of unconstitu-

tional conduct that has been found to be malicious or

oppressive.

The court below dismissed Trevino’s ratification

claim by holding that “the City Council in this case was

not deciding whether to approve the officers’ conduct: it

was debating whether or not to compensate victims of the

constitutional deprivation[,] . . . [and therefore,] the

Council members’ vote to pay punitive damages does not

amount to ratification.” Slip op. at 14447. This is incorrect

as a matter of law, because Section 1983 punitive damages

do not compensate, rather they are intended to deter

unconstitutional conduct. It dismissed Trevino’s claim by

holding that “[w]ere we to find ratification, our holding

would fly in the face of Cornwell by indirectly finding that

a municipality’s payment of punitive damages under Cal.

Govt. Code § 825(b) violates federal law.” Ibid.

The court below decided the issue of whether or not

voting to indemnify for punitive damages was either a

vote to “compensate victims of the constitutional depri-

vation,” as respondents claimed, or a vote to “approve

the officers’ conduct,” as petitioner claimed, in respon-

dents’ favor, and foreclosed determination of the legal

issue in petitioner’s favor by relying on Cornwell.

It was for a jury to determine whether the vote to

indemnify was a vote to compensate victims or a vote of

approval of unconstitutional conduct. Because Section

1983 has both compensation and deterrence purposes, it

also was for a jury to determine if the former purpose

was the only purpose behind the vote to indemnify. If, as

a matter of fact, the vote to indemnify was a vote to ratify

tioner had a viable claim against respondents City and its

council members. Because the facts were in dispute as to

the purpose of the vote to indemnify for punitive dam-

ages, and because Cornwell’s license to indemnify police

who act maliciously, oppressively, and in disregard of

constitutional rights, vitiates completely the deterrence

function of Section 1983, this Court should grant cer-

tiorari to repudiate the Cornwell-Trevino rule.

unconstitutional conduct, then, absent Cornwell, peti- |

¢

REASONS FOR GRANTING THE PETITION

The reasons for granting the Petition are:

1. There has been a faulty construction of federal

law, in which a state statute has been permitted to over-

ride the clear purposes of federal law, and this anomaly

will affect numerous civil rights cases;

2. Public officials have used methods which are

alien to our American system of justice, and will be i

permitted to escape the consequences of their bad con- |

duct;

3. The opinion below is at odds with the rationale

and previous assumptions upon which this Court has

approved imposition of punitive damages, and will oper-

ate to cause serious unwanted and unwarranted results;

and,

4. The issue affects federal civil rights actions in

numerous states.

'

t

Se * Y

It is contrary to the recognized deterrence purpose of

the civil rights laws to permit local government entities to

pay punitive damages assessed against police officers.

Punitive damages “ ‘are private fines levied by civil

juries to punish reprehensible conduct and to deter its

future occurrence.’” Electrical Workers v. Foust, 442 USS.

42, 48 (1979) (quoting Gertz v. Robert Welch, Inc., 418 US.

323, 350 [1974] [footnote omitted]). Punitive damages, the

United States has argued, fulfill a “jury’s need to punish

and deter . . . reprehensible conduct. .. . ” O’Gilvie v.

United States, 95-966 (December 10, 1966) (quotation

inverted). A local government's indemnification of puni-

tive damages for police who maliciously and oppresively

violate the Constitution defeats entirely both the purpose

and the function of punitive damages.

Section 1983 was intended not only to provide

compensation to the victims of past abuses, but

to serve as a deterrent against future constitu-

tional deprivations, as well. Liability for

. injurious conduct [is] an incentive for offi-

cials who may harbor doubts about the lawful-

ness of their intended actions to err on the side

of protecting citizens’ constitutional rights.

Owen v. City of Independence, 445 U.S. 622, 651-52 (1980)

(emphasis added). The court of appeals’ decision is con-

trary to the deterrent purpose of Section 1983.

The purpose of punitive damages is very clear:

to punish the wrongdoer for some extraordinary

misconduct, and to serve as an example or

warning to others not to engage in such con-

duct.

Devitt and Blackmar, Federal Jury Practice and Instructions

(West 1996), Section 85.11.

In refusing to permit a civil rights plaintiff to recover

punitive damages from a local government, over the

objection of that government, this Court made very clear

the purposes that underlie punitive damages in federal

civil rights actions.

City of Newport v. Facts Concerts, Inc., 453 U.S. 247,

259-71 (1980), made clear that:

[T]he 1871 [Civil Rights] Act was designed to

expose state and local officials to a new form of

liability [and it] would defeat the promise of the

statute to recognize any preexisting immunity

without determining both the policies that it

serves and its compatibility with the purposes

of Section 1983. [Citations omitted.] Only after

careful inquiry into considerations of both his-

tory and policy has the Court construed Section

1983 to incorporate a particular immunity

defense.? [T]he officials’ malice [for purposes of

2 Indeed, only those immunities that historically existed at

the time the Civil Rights Act became law in 1871 have been

applied by the courts as immunities in Section 1983 actions, and

it long has been the case that “[s]tate statutory immunity

provisions do not apply to federal civil rights actions.” Guillory

v. County of Orange, 731 F.2d 1379, 1382 (9th Cir. 1984). As this

Court has held, to construe a federal statute to allow a state

immunity “to have controlling effect would transmute a basic

guarantee into an illusory promise,” which the Supremacy

Clause does not permit. Martinez v. California, 444 U.S. 277, 284

n. 8 (1980). In Guillory, the Ninth Circuit refused to permit

California to set up California Government Code Sections 820.2

and 821.2 as immunity defenses in a civil rights action. 731 F. 2d

at 1382. The holding in Guillory should have dictated a different

ae LT A

00 Oe Rm oe

punitive damages] should not be attributed to the

taxpaying citizens of the community. . . . “Those

who violate the laws of their country, disregard

the authority of courts of justice, and wantonly

inflict injuries, certainly become thereby obnox-

ious to vindictive damages. These, however, can

never be allowed against the innocent.”

[259-61.]

(“The [municipal] corporation can not, upon any

principle known to us, be responsible for the

malice of its officers towards the plaintiffs”). In

general, courts viewed punitive damages as

contrary to sound public policy, because such

awards would burden the very taxpayers and

citizens for whose benefit the wrongdoer was

being chastised. . .. Compensation was an oblig-

ation properly shared by the municipality itself,

whereas punishment properly applied only to

the actual wrongdoers. The courts thus pro-

tected the public from unjust punishment... .

[262-64.] [W]e examine the objectives underly-

ing punitive damages in general, and their rela-

tionship to the goals of Section 1983. Punitive

damages by definition are not intended to com-

pensate the injured party, but rather to punish

the tortfeasor . . . and to deter him and others

from similar extreme conduct... . [I]t remains

true that an award of punitive damages against

a municipality “punishes” only taxpayers, who

took no part in the commission of the tort.

[266-67.]

result by the Ninth Circuit in Cornwell, as should have this

Court’s Mariinez decision.

10

[The] retribution should [not] be visited upon the

shoulders of blameless or unknowing taxpayers.

Under ordinary principles of retribution, it is

the wrongdoer himself who is made to suffer for

his unlawful conduct. . .. Damages awarded for

punitive purposes, therefore, are not sensibly

assessed against the governmental entity itself.

[D]eterrence of future abuses of power by persons

acting under color of state law is an important

purpose of Section 1983. . . . [T]he deterrence

rationale of Section 1983 does not justify making

punitive damages available against munici-

palities. [268-69.] [T]here is a more effective

means of deterrence [than assessing punitive

damages against governmental entities]. By

allowing juries and courts to assess punitive dam-

ages in appropriate circumstances against the offend-

ing official, based on his personal financial resources,

the statute directly advances the public's interest in

preventing repeated constitutional deprivations. In

our view, this provides sufficient protection

against the prospect that a public official may

commit recurrent constitutional violations. . . .

The Court previously has found, with respect to

such violations, that a damages remedy recoverable

against individuals is more effective as a deterrent

than the threat of damages against a governmental

employer. [Citation omitted.] We see no reason to

depart from that conclusion here, especially since the

imposition of additional penalties would most likely

fall upon the citizen-taxpayer.

To add the burden of exposure for malicious

conduct of individual government employees

wm *

11

may create a serious risk to the financial integ-

rity of these governmental entities. [270-71.]

(Emphases added).

This Court unequivocally declared that the malice of

individual government officials “should not be attributed

to the taxpaying citizens of the community” and that a

municipality cannot “be responsible for the malice of its

officers.” “Punishment properly [can be] applied only to

the actual wrongdoers.” “Retribution should [not] be vis-

ited upon the shoulders of blameless or unknowing tax-

payers.”

Yet, the State of California has accomplished pre-

cisely what this Court has forbidden: an attribution to the

taxpaying citizens of the community of the malice of

government officials. While California has the power to

regulate attribution of punitive damages in its courts, it

has no power to permit payment of punitive damages by

its local governmental entities when such damages are

assessed in a federal court. United States Constitution,

art. VI (the Supremacy Clause). Apart from the federal

constitutional bar to such state permissiveness, the pur-

poses of assessment of punitive damages in civil rights

actions do not permit such burden-shifting. Moreover,

traditional notions of punishment and responsibility do

not permit the sort of burden-shifting permitted by Cali-

fornia.

Of the 15 states and one United States territory who

have legislated on the issue of whether or not a local

governmental entity (or a state) may opt to indemnify

government officials for punitive damages, nine states

permit such indemnification, four states and one territory

12

prohibit it, one state permits legislation to permit it, and

one state permits the purchase of liability insurance to

provide such indemnification.

It is permitted in California (Cal. Govt. Code § 825[b]

[West 1996]); Colorado (Colo. Rev. Stat. § 24-10-114,

24-10-118[5] [1996]); Maine (Me. Rev. Stat. Ann. tit. 14

§ 8112 [1996]); Maryland (Md. Cts. and Jud. Proc. § 5-403

[1984]); Minnesota (Minn. Stat. § 466.07 [1996]); New

Jersey (N.J. Rev. Stat. § 59:10-1 [1996] [state], 59:10-4

[political subdivisions]); New York, but only for police

(N.Y. Gen. Mun. Law § 50-j [McKinney 1996] [enabling

statute], 50-1 [requiring Nassau County to indemnify

police], 50-m [same for Suffolk County], 50-n same for

other police in Nassau County), and prohibits it other-

wise (N.Y. Pub. Off. Law [West 1996] § 18); Ohio (Ohio

Rev. Code Ann. § 9.87 [Baldwin 1996] [state], § 277.44.07

[political subdivisions]); and, Oklahoma (Okla. Stat. § 162

[1996}).

It is prohibited in Illinois to political subdivisions (Ill.

Rev. Stat. ch. 745 § 10/2-302 [West 1996]); Kansas (Kan.

Stat. Ann. § 75-6109 [1996]); North Dakota (N.D. Cent.

§ 32-12.1-03 [1996]); and, Virgin Islands (V.I. Code Ann.

tit. 10 § 102 [1996]}).

Nebraska permits it for state employees with the

approval of the state legislature (Neb. Rev. Stat.

§ 81-8.239.05 [1996]); and, Iowa permits the purchase of

insurance to provide indemnification (lowa Code § 670.8

[1996]).

In January 1986, California’s punitive damages burden-

shifting law took effect. Cal. Govt. Code (West 1996) Sec-

tion 825(b). That Section permits governmental entities in

13

California to pay judgments for punitive damages under

certain prescribed circumstances, by making findings that

employees acted within the course and scope of their

duties, and acted in good faith. (Of course, such a finding

of good faith would be completely at odds with any jury

verdict in a federal civil rights action against government

employees, whom a jury necessarily would have found not

to have been in good faith by its rendering of a verdict

against such employees; not to mention it being com-

pletely at odds with the necessary mixed factual/legal

finding that is a predicate for an award of punitive dam-

ages: wantonness, malice, or oppression.)

The California statute should not have any effect

whatsoever in this action. Section 1988 of Title 42 of the

United States Code provides that:

The jurisdiction in civil. . . . matters conferred

on the district courts, by the provisions of this

Title, . . . shall be exercised and enforced in

conformity with the laws of the United States,

so far as such laws are suitable to carry the same

into effect; but in all cases where they are not

adapted to the object, . . . the common law, as

modified and changed by the constitution and

statutes of the State wherein the court having

jurisdiction of such civil . . . cause is held, so far

as the same is not inconsistent with the Constitu-

tion and laws of the United States, shall be

extended to and govern said courts... .

(Emphasis added.) Section 1988’s first sentence puts into

effect the principle of assimilation of laws, but limits the

application of assimilation to laws consistent with federal

law, pursuant to the mandate of the Supremacy Clause,

supra. (“This Constitution, and the laws of the United

14

States which shall be made in pursuance thereof{ |

. . Shall be the supreme law of the land; and the judges

in every state shall be bound thereby, and any thing in

the Constitution or laws of any state to the contrary

notwithstanding.”) The assimilative provisions of Section

1988 can have no application in instances in which state

law is incompatible with, or contrary to, federal law,

Robertson v. Wegmann, 436 U.S. 584 (1978), as here. In

considering questions of inconsistency between federal

law and state law for the purposes of assimilative use of

state law under Section 1988, the policies underlying

federal law must be considered and put into effect. State

law may not be used assimilatively when such application

would be inconsistent with the principles underlying fed-

eral law. Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.

1984). For example, it has been held that conflicting Cali-

fornia state law concerning an award of attorneys’ fees

may not be applied when such California state law is

inconsistent with federal law. Section 1988 preempts

application of conflicting California law when it is incon-

sistent with federal law. La Raza Unida v. Volpe, 545 F.

Supp. 36 (D. Cal. 1982). The same should be true here.

The provisions of Government Code Section 825(b)

are inconsistent with the federal common law of punitive

damages, and therefore the provisions of that Section

may not be invoked in this federal civil rights action to

vouchsafe from potential liability government and gov-

ernment officials who make nugatory punitive damages

awards in federal civil rights actions, and who defeat the

deterrent purpose and function of Section 1983 punitive

damages awards.

Pp rennemananeaneneninacaatans Yaseen nomen

15

“Title 42 U.S.C. § 1988 authorizes courts to look to the

common law of the States where this is ‘necessary to

furnish suitable remedies’ under § 1983.” Carey v. Piphus,

435 U.S. 247, 258 n. 13 (1978). Federal courts are to turn to

state law in order to fill gaps which may exist in federal

law. See Brazier v. Cherry, 293 F.2d 401, 409 (5th Cir. 1961).

When federal law is sufficient to carry the policies of the

civil rights statutes into effect, resort to state law is not

necessary. Ibid. “Compensatory damages for deprivation

of a federal right are governed by federal standards, as

provided by Congress in 42 U.S.C. § 1988... .” Sullivan v.

Little Hunting Park, Inc., 396 U.S. 229, 239 (1969). A forti-

ori, so too are punitive damages governed by federal

standards when they are awarded for deprivation of a

federal right. “[RJesort to State law . . . should not be

undertaken before principles of federal law are

exhausted.” Wilson v. Garcia, 471 U.S. 261, 268 (1985)

(emphasis added).

Here, principles of federal law are not exhausted, and

need not be exhausted, because the principles underlying

federal law require that those against whom punitive

damages are assessed must bear the burden of those

damages.

Federal law allows the imposition of punitive dam-

ages even in cases in which such recovery may not be had

under state law. Smith v. Wade, 461 U.S. 30 (1983). A

fortiori, in cases in which state law attempts to make

nugatory an award of punitive damages, viz., California

Government Code Section 825(b), federal law does not

permit the assimilation of those state law provisions to

thwart the impact of federal law.

16

A goal of assimilation of state law under Section 1988

is the achievement of uniformity of federal law. Wilson,

supra; Owens v. Okure, 488 U.S. 235 (1989). It is wholly

inconsistent with this Court’s view of the application of

state law through Section 1988 to permit assimilation of

California’s Section 825(b), because California thereby is

permitted to have a sui generis rule that permits its gov-

ernment officials to escape the burdens of their miscon-

duct, while government officials in other jurisdictions

have to bear that burden. It is inconsistent with this

Court’s view that there be uniformity of application of

the civil rights laws to permit respondents here to shelter

themselves under Section 825(b).

The opinion below, based on reasons set forth in

Cornwell that are demonstrably wholly inconsistent with

federal law, brushes aside precedent, and Cornwell's

admission of the “harmony between [Cornwell’s] posi-

tion and the [Supreme] Court’s analysis of punitive dam-

ages[,]” 896 F.2d at 400, to reach the results-oriented

conclusion that state law may operate to vouchsafe from

the imposition of punitive damages miscreant police offi-

cers so that civil rights “plaintiff[s] would [not] have an

extraordinary weapon with which to negotiate with indi-

vidual defendants [in civil rights actions],” ibid., is illogi-

cal. Cornwell is significantly flawed, for the following

reasons. (Each initial quotation from the opinion is fol-

lowed directly with the reasons it is flawed.)

1. “There is no doubt that the damages awardable

under 42 U.S.C. § 1983 are a matter of federal law. Cali-

fornia cannot set up a policy subversive of that law. .

City of Newport does not establish a federal policy prohib-

iting a city from paying punitive damages. . . . [T]he city

17

is not bound by the jury’s findings. .. . ” 896 F.2d 398 at

399.

The City should be subject to liability based on a

theory of ratification of bad conduct when it pays puni-

tive damages for its police.

These statements are misguided. Cal. Govt. Sec.

825(b) is “subversive” of the federal law of punitive dam-

ages because it permits federal civil rights defendants not

to pay them, and effectively abolishes them. Just as Cali-

fornia law that would permit a designee to serve jail time

upon conviction of a federal crime would be “subversive”

of federal law, so too is Section 825(b) subversive of

federal law because it is the opposite of the federal prin-

ciple that “the wrongdoer himself . . . [should be] made to

suffer for his unlawful conduct. ... ” 896 F.2d at 399.

Though a local government entity is not bound by a jury

finding of malice, etc., against one of its employees, the

employee qua federal defendant against whom a federal

jury has awarded punitive damages under federal law

must be bound by that finding.

The Ninth Circuit’s Cornwell-Trevino rule is subver-

sive of federal law.

2. “We find no federal law prohibiting California

cities from acting under the authority conferred by the

California legislature. When Congress has wanted to pro-

hibit payment of damages on behalf of one person by

another it has known how to do so with express lan-

guage.” 896 F.2d at 400.

This, also, misses or avoids the point. Congress has

not provided for punitive damages, because the common

law of damages makes such provision. Thus, to hold that

18

only congressional action may prevent indemnification of

punitive damages by the government misses the point

that Congress does not need to do so because the com-

mon law has done so. Congress has not provided for

innumerable matters that this Court regularly decides

without the intervention of Congress.

3. “[A] prohibition on indemnification would be in

harmony with [this] Court’s analysis of punitive dam-

ages.” Ibid.

This statement should have warranted the relief

sought in Cornwell without more, because the common

law, and not a federal statute, should control the outcome

of this case.

4. “[That] there would be occasions when civil

rights plaintiffs would go unsatisfied because the individ-

ual defendants lack the assets to pay [punitive dam-

ages,]” ibid., misses the point.

Cornwell did not ask the court to bar indemnification

of punitive damages; but simply, as the court later

divined, asked to permit a plaintiff who is awarded puni-

tive damages, to refuse to permit indemnification. Such a

plaintiff would be the only person with standing to do so,

and if, in such a case that plaintiff went “unsatisfied,”

that would result only from his or her decision. The

Cornwell court’s “concern” here is unsupported obiter dic-

tum.-~.

The Ninth Circuit’s refusal to follow the federal law

of damages it admits is controlling, because to do so

would give a civil rights plaintiff “an extraordinary

weapon with which to negotiate with individual defen-

dants[,]” ivid., is beside the point.

19

The law must be the law, even if it is helpful to

plaintiffs in civil rights cases. This is not “an additional

remedy,” ibid., to civil rights plaintiffs - it is the law.

Additionally, by enacting Section 825(b), California has

arrogated to itself the power to provide “an additional

defense” to civil rights defendants.3

The Ninth Circuit rendered faulty constructions of

the federal law of punitive damages. A state statute was

permitted to override and to preempt federal law, and the

anomaly created by this construction affects every civil

rights case in California. The Cornwell-Trevino rule is

wholly at odds with, and contrary to, previous assump-

tions concerning the federal law of punitive damages,

and will result in serious, unwanted results.

Rules on permissible sources of payment of Rule 11

sanctions provide support for Petitioner’s position.

In Pavelic & LeFlor v. Marvel, 493 U.S. 120, 126-27

(1990) this Court held, directly contrary to Cornwell, as

follows:

[I]t is not at all clear that respondents’ strained

interpretation would better achieve the pur-

poses of the Rule. It would, to be sure, better

guarantee reimbursement of the innocent party

for expenses caused by the Rule 11 violation,

since the partnership will normally have more

funds than the individual signing attorney. The

purpose of the provision in question, however,

is not reimbursement but “sanction”; and the

purpose of Rule 11 as a whole is to bring home

3 See note 2, supra.

20

to the individual signer his perscnal, nondeleg-

able responsibility. It is at lease arguable that

these purposes are better served by a provision

which makes clear that, just as the court expects

the signer personally — and not his law firm — to

validate the truth and legal reasonableness of

the papers filed, so also it will visit upon him

personally - and not his law firm - its retribu-

tion for failing in that responsibility. The mes-

sage thereby conveyed to the attorney, that this

is not a “team effort” but in the last analysis

yours alone, is precisely the point of Rule 11.

As is the case with Rule 11 sanctions, so too should it

be the case with punitive damages that, retribution

should fall not on the taxpayers, but on the wrongdoer,

because “[t]he message thereby conveyed [will be that the

blame] is yours alone. ...” To hold otherwise would make

nugatory the purpose and effect of punitive damages.

This position is supported strongly by Derechin v.

State Univ. of New York, 963 F.2d 513, 518-19 (2d Cir. 1992),

and the cases cited therein.

Derechin resolved the issue of whether a federal court

could prohibit indemnification by the State of New York

of sanctions imposed against a New York State assistant

attorney general under F.R. Civ. P. (West 1996) Rule 11.

The Derechin court's canvass of the relevant law led it

to conclude that “federal courts have ‘unquestioned

authority’ to impose a Rule 11 sanction on the lawyer

rather than the client[,]” 963 F.2d at 518 (citations omit-

ted), and that “[s]ome courts . . . have explicitly prohib-

ited reimbursement of a Rule 11 sanction by the client. See

Borowski v. DePuy, Inc., 850 F.2d 297, 305 (7th Cir. 1988);

Ce ee en ee

21

Huettig & Schromm, Inc. v. Landscape Contractors Council,

582 F. Supp. 1519, 1522 (N.D. Cal. 1984), aff'd, 790 F.2d

1421 (9th Cir. 1986); Wold v. Minerals Engineering Co., 575

F. Supp. 166, 168 (D. Colo. 1983); see also, Farino v. Walshe,

938 F.2d at 8 (‘The Courts unquestioned authority to

impose a Rule 11 sanction and to determine that the

sanction should be borne by the lawyer and not the

clients obviously included the authority to make the

express terms of the sanction order effective’).” Ibid.

Noting that this Court “made it clear that the ‘central

goal’ of Rule 11 is deterrence[,] Cooter & Gell v. Hartmarx

Corp., 110 S.Ct. at 2454[,]” the court disposed of the

reasoning that underlies the premise in this case, that

indemnification of punitive damages furthers the goal of

payment of damages by stating that this “Court recog-

nized that the imposition of Rule 11 sanctions on the

signing attorney’s law firm would better guarantee reim-

bursement to litigants[,]” ibid., but that indemnification

defeated the central purposes of such sanctions, to wit,

punishment and deterrence.

The court analogized the issue of indemnification of

Rule 11 sanctions with indemnification of punitive dam-

ages, and found that “[e]Jighteen states . . . have held that

insurance policies covering punitive damages assessed

directly on the defendant are void as a matter of public

policy. See Richard L. Blatt, Robert W. Hammesfahr, and

Lori S. Nugent, Punitive Damages: A State by State Guide to

Law and Practices § 5.3 (1991). ...” Id. at 519 (other

citations omitted).

[T]he major consideration supporting this rule is

that the deterrent effect of punitive damages

would be diluted if the defendant were allowed

22

to pass on the burden of such damages to his

insurer. In the leading case of Northwest National

Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir.

1962), the Court held that punitive damages

were not insurable under Florida and Virginia

law. Judge Wisdom identified a number of soci-

etal interests advanced by the rule against insur-

ability, notably that insurance against punitive

damages weakened the deterrent effect of such

awards. Id. at 441-42. In part on this ground, the

public policy of many states prohibits insurance

for punitive damages even though the proscrip-

tion increases the risk that some claimants wiil

not recover the full amount of their punitive

damage award. See id. at 443, 444-45 (Gewin, J.,

concurring). The reasoning is persuasive in the

instant case. The availability of insurance for

Rule 11 sanctions might increase the possibility

for full recovery of attorney’s fees, but would

weaken the deterrent effect of the sanction by

allowing the sanctioned attorney to shift the

burden of the sanction. Deterrence would be

undermined if district courts could not impose

Rule 11 sanctions without the possibility of

indemnity — whether from a client, an employer,

or an insurer.

Ibid.

The reasoning that supports the conclusion that fed-

eral courts necessarily must be permitted to impose Rule

11 sanctions and prohibit indemnification, supports even

more strongly the proposition argued here that this Court

must permit civil rights plaintiffs to refuse indemnifica-

tion of punitive damages, and should prohibit in any

circumstances such indemnification.

23

State statutes that permit indemnification of punitive

damages do not merely “dilute” the deterrent effect of

such damages; they destroy any deterrent effect. What is

worse, they punish innocent taxpayers who have little if

any knowledge of this phenomenon, who do not know

when it occurs, and who have no realistic recourse to

prevent it.

The sound idea that an insurer may not indemnify

for punitive damages because to do so is against public

policy, takes on significantly greater force in light of (1)

the importance of the constitutional rights that are vindi-

cated in federal civil rights actions vis-a-vis ordinary tort

rights, (2) the fact that the tortfeasors in civil rights

actions always are persons who engage in wrongdoing

cloaked with the authority of the government, and (3) the

fact thet deterrence of violations of the Constitution and

federal laws is vitiated by indemnification. The societal

interests that weigh against indemnification of punitive

damages in federal civil rights cases are great, indemni-

fication serves no societal interest at all, and serves only

the personal interests of miscreant police (who lobbied

heavily, at least in California and in New York, for the

indemnification statutes), and the politicians who seek to

curry their favor.

Federal courts who have the power to prohibit

indemnification of Rule 11 sanctions, have the power, and

more reason, to prohibit indemnification of punitive dam-

ages in cases brought under a federal statute whose

express purposes is deterrence, as compared to a mere

rule of procedure, such as Rule 11. Indeed, the courts

have a duty to do so to preserve the deterrent function of

punitive damages in federal civil rights actions in states

24

who have subverted both Section 1983 and the federal

common law of punitive damages by enacting indemni-

fication statutes, such as California’s Govt. Code § 825(b).

— s

CONCLUSION

The Petition for Certiorari should be granted (1) to

prevent California from continuing to pervert and to

undermine the deterrent function of punitive damages

awards under Section 1983, and, (2) to protect innocent

taxpayers from bearing the burden of “officials’ malice

[that] should not be attributed to the taxpaying citizens of

the community. . . . ” City of Newport, supra, 453 U.S. at

261.

As this Court said in City of Newport: “[t]hese [puni-

tive damages] . . . can never be allowed against the

innocent. ...” Ibid. (quoting from McGary v. President &

Council of the City of Lafayette, 12 Rob. 668, 677 [(La.

1846}).

25

To let the Cornwell-Trevino rule stand would fly in the

face of this Court’s reasoning and holding in City of

Newport.

January 1, 1997 Respectfully submitted,

Georce C. Pratt STEPHEN YAGMAN

PAaRNON & PRatTT Counsel of Record

10 Rockefeller Plaza Marion R. YAGMAN

New York, New York 10020 YAGMAN & YAGMAN, P.C.

(212) 698-7980 723 Ocean Front Walk

R Venice, California 90291-3270

AMSEY CLARK

LawrENCE W. SCHILLING (310) 452-3200

36 East 12th Street Attorneys for Petitioner,

New York, New York 10003 Johanna Trevino

(212) 475-3232

Of Counsel

la

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHANNA TREVINO,

Plaintiff-Appellant,

V.

Daryt Gates; Tom BRADLEY; ToM

R» in; RoGer Murpocx; Ep

Davis; HERBERT BOECKMANN; JAMES

Fisk; STEPHEN GAVIN; MAXWELL

GREENBERG; ELBERT HupDson;

MARrGUERITE Justice; EMMETT

McGAuGHEY; SALVADOR

MONTENEGRO; BARBARA SCHLEI;

~ Rosert Tatcott; Reva Too ey; No. 95-55290

Rosert Wert; SAMUEL WILLIAMs;

S Y - LAPD O D.C. No.

TEPHEN YSLAS; FFICERS; CV-92-01981-JSL

JERRY Brooks; JosEPH CALLIAN;

WARREN Sirk; RICHARD SPELLMAN; OPINION

Gary STRICKLAND; JAMES TIPPINGS;

RICHARD ZIERENBERG; MANUEL

AvILA; CHARLES BENNETT; BRIAN

Davis; JOHN FRUGE; JOSEPH FREIA;

E.T. Guiza; Peter SANCHEZ;

REGINALD WEAVER; JAMES Toma;

C.S. Winston; Puitre Wixon; Gary

ZERBEY; JOEL WACHs; Joy Picus;

JOHN FERRARO; ZEV YAROSLAVSKY;

RuTH GALANTER; ERNANI BERNARDI;

Nate Hoipen; Marvin Braupe;

Hat BerRNson; MIcHAEL Woo; JOAN

FLOREs;

wee ee eae ee ee ee ee ee ee ee (ee lee ee we es es

2a

One HunprED UNKNOWN NAMED

EMPLOYEES OR OFFICIALS OF THE

Crty or Los ANGELES, all in both

their individual and official

capacities; Crry or Los ANGELEs,

me ee eee ee ee ee”

Defendants-Appellees.

Appeals from the United States District Court

for the Central District of California

J. Spencer Letts, District Judge, Presiding

Argued and Submitted

August 6, 1996 — Pasadena, California

Filed November 1, 1996

Before: Dorothy W. Nelson, Thomas G. Nelson, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas

COUNSEL

Stephen Yagman, Yagman & Yagman, Venice, California,

for the plaintiff-appellant.

Katherine J. Hamilton, Assistant City Attorney, Los

Angeles, California; Louis R. Miller and Jonathan H.

Anschell, Christensen, White, Miller, Fink & Jacobs, Los

Angeles, California, for the defendants-appellees.

OPINION

THOMAS, Circuit Judge:

Plaintiff Johanna Trevino is the daughter of Juan

Bahena, one of three men killed by Los Angeles Police

3a

Department (“LAPD’ ) officers during a robbery. Among

other claims, Trevino alleged that the City of Los Angeles

(“City”) and members of the Los Angeles City Council

(“Councilmembers”) deprived her of her civil rights in

violation of 42 U.S.C. § 1983 by indemnifying LAPD

officers against punitive damage liability in excessive

force cases. Trevino appeals the district court’s entry of

summary judgment for the Councilmembers and the City,

along with numerous other issues. We affirm all of the

district court’s rulings, with the exception of the attor-

neys’ fees award.

BACKGROUND

Juan Bahena was fatally shot by LAPD officers

shortly after he and three accomplices robbed a

McDonald’s restaurant on February 12, 1990. While leav-

ing the scene, Bahena and the other perpetrators were

surrounded by police officers. Believing the burglars to

be pointing guns in their direction, the officers opened

fire, killing three of the four suspects. None of the per-

petrators were bearing actual firearms, only pellet guns.

Trevino’s grandmother and survivors of the other

victims sued the officers involved, the police chief and

the City of Los Angeles for violations of 42 U.S.C. § 1983

based on the use of excessive force. Gomez v. Gates, 804 F.

Supp. 69 (C.D. Cal. 1992). Trevino was not a party to the

lawsuit. The Gomez jury found the police chief and the

officers involved liable, awarded nominal compensatory

damages of $1 and a total of $44,000 in punitive damages

in varying amounts against the LAPD officers. After

deliberating for two days, the City Council voted to pay

4a

the punitive damage award pursuant to Cal. Gov. Code

§ 825(b).

Trevino then filed a lawsuit against the officers

involved, the Councilmembers and the City under 42

U.S.C. § 1983. She sued the officers on substantially the

same theories her grandmother asserted in Gomez repre-

sented by the same lawyer as her grandmother had been.

Trevino also sued the City and Councilmembers on the

theory that punitive damage indemnification encouraged

excessive force and caused a deprivation of her constitu-

tional rights. Alternatively, she claimed the Council’s

decision to pay the Gomez punitive damage award was an

unconstitutional ratification of LAPD’s excessive force.

In 1993, the district court held Trevino was collat-

erally estopped from relitigating punitive damage lia-

bility because the Gomez verdict had already determined

the is.ue. The district court limited punitive damages to

$9,109, the highest amount awarded to any plaintiff in

Gomez. The defendant officers stipulated to a total puni-

tive damages award of $9,109. The only remaining issue

to be litigated against the officers was the compensatory

damages due to Trevino.

After two mistrials, trial was reset for December 6,

1994. The district court granted summary judgment to the

City and the Councilmembers. At trial, the jury awarded

Trevino only nominal damages against the officers. The

district court entered judgment in the amount of $1 plus

$9,109 in stipulated punitive damages. Trevino moved for

attorney’s fees in the amount of $495,885 under 42 U.S.C.

§ 1988. The district court awarded $25,000.

5a

SUMMARY JUDGMENT FOR COUNCILMEMBERS

BASED ON QUALIFIED IMMUNITY

Trevino contends that the district court erred in

granting summary judgment for the Councilmembers on

the grounds of qualified immunity. We review the court’s

grant of qualified immunity and summary judgment de

novo. Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir. 1995);

Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995);

cert. denied ___ U.S. ___, 116 S. Ct. 1261, 134 L. Ed. 2d 209

(1996). Qualified immunity is an immunity from suit. Act

Up!/Portland v. Bagley, 988 F.2d 868, 872 (9th Cir. 1993).

Public officials sued under 42 U.S.C. § 1983 are entitled to

qualified immunity if:

(1) the “right” they allegedly violated was not

“clearly established” at the time of the violation,

or

(2) if a reasonable [official] would have

thought that the defendants’ actions were con-

stitutional.

Palmer v. Sanderson, 9 F.3d 1433, 1435 (9th Cir. 1993)

(citations omitted); see also Neely, 50 F.3d at 1507. The

plaintiff has the burden of proving that the right

allegedly violated was clearly established. Id. at 1509. If

the plaintiff meets this burden, then the defendant must

prove that his conduct was “reasonable even though it

might have violated the law.” Id. “The threshold deter-

mination of whether the law governing the conduct at

issue is clearly established is a question of law for the

court.” Act Up!, 988 F.2d at 873.

Trevino has alleged that the Councilmembers, by

engaging in a policy of routinely voting to pay punitive

6a

damages, violated Trevino’s constitutional rights by pro-

moting and ratifying the use of excessive force by the

LAPD. Although this issue is contested, we will assume

for purposes of this analysis only that the City Council

actions constituted a custom or policy of indemnifying

officers for punitive damage awards.

Under the first part of the qualified immunity test,

Trevino must demonstrate that the policy violated clearly

established law.

To be clearly established, the law must be suffi-

ciently clear that a reasonable official would under-

stand that what he is doing violates that right. It is

not necessary that the alleged act have been

previously declared unconstitutional, as long as

the unlawfulness was apparent in light of preex-

isting law.

Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996) (citation

and internal quotations omitted, emphasis added). To

determine whether law is clearly established, we “survey

the legal landscape” and examine those cases that are

“most like” the instant case. Figueroa v. United States, 7

F.3d 1405, 1409 (9th Cir. 1993), cert. denied___ U.S. __, 114

S. Ct. 1537, 128 L. Ed. 2d 190 (1994). “In the absence of

binding precedent, we look to all available decisional

law.” Id. (citations and internal quotations omitted).

A survey of the legal landscape demonstrates that the

law is not sufficiently clear that a reasonable Coun-

cilmember would understand that payment of punitive

damages violates any constitutional right either now or

prior to the fatal shooting.

7a

First, a municipality’s payment of punitive damages

under Cal. Govt. Code § 825(b) does not violate federal

law.! Cornwell v. City of Riverside, 896 F.2d 398, 399 (9th

Cir.), cert. denied, 497 U.S. 1026, 110 S. Ct. 3274, 111 L. Ed.

2d 784 (1990). Indeed, as the court noted in Cornwell, a

municipality’s payment of punitive damages may have

the salutary purpose of assuring that civil rights plaintifis

can collect their judgments. Id. at 400.

Second, cases from other jurisdictions have held that

a punitive damages indemnification policy could not

cause a constitutional deprivation. Ekergren v. City of Chi-

cago, 538 F. Supp. 770, 772-773 (N.D. Ill. 1982); Brown v.

City of Chicago, 573 F. Supp. 1375, 1379 (N.D. Ill. 1983).

Third, under California law, indemnification is dis-

cretionary, subject to certain restrictions. Cal. Gov. Code

§ 825(b). In making its indemnification decision, the

municipality uses its own independent judgment as to the

underlying facts. “That the city reaches a different result

as to the good faith of the officers than a federal jury is

not decisive: the city is not bound by the jury’s findings

when it makes its decision to indemnify.” Cornwell 896

F.2d at 399.

1 Under Cal. Gov. Code § 825(b) a public entity, “acting in

its sole discretion,” may pay punitive damages awarded against

a public employee if: (i) the employee was acting within the

course and scope of employment during the incident in

question, (ii) the employee acted “in good faith, without actual

malice and in the apparent best interests of the public entity,”

and (iii) payment of the punitive damages “would be in the best

interest of the public entity.”

8a

Thus, far from being “clearly established law,” a pol-

icy of indemnifying punitive damage awards has never

been judicially determined as violating constitutional

rights by encouraging police officers to use excessive

force. In fact, Cornwell indicates that indemnification is

discretionary and Ekergren casts serious doubt on

whether an indemnification policy may legally cause the

use of excessive force. Such a policy is not sufficiently

similar to other actions that have been held unconstitu-

tional to put reasonable Councilmembers on notice that

their actions could possibly violate constitutional rights.

See Chew v. Gates, 27 F.3d 1432, 1449-50 (9th Cir. 1994),

cert. denied, __ U.S. __, 115 S. Ct. 1097, 130 L. Ed. 2d

1065 (1995).

Therefore, we conclude that the law is not clearly

established that a policy of indemnifying punitive dam-

age awards violates constitutional rights, either now or

prior to the robbery. A city council does not violate

section 1983 if it indemnifies officers against punitive

damage awards on a discretionary, case by case basis, and

complies in good faith with the requirements of Cal. Gov.

Code § 825(b).

Because Trevino failed to demonstrate that the Coun-

cilmembers’ conduct violated a clearly established consti-

tutional right, we need not address the second prong of

the qualified immunity test. We affirm summary judg-

ment for the Councilmembers. See Lucero v. Hart, 915 F.2d

1367, 1371 (9th Cir. 1990).

Ya

SUMMARY JUDGMENT FOR THE

CITY ON THE MERITS

Trevino alleges that the district court also erred in

granting summary judgment to the City on the merits.

Even though the Councilmembers are entitled to quali-

fied immunity, the City may still be subject to municipal

liability for causing a constitutional violation under 42

U.S.C. § 1983. Owen v. City of Independence, 445 U.S. 622,

651-652, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980). As a

prerequisite to establishing Section 1983 municipal lia-

bility, the plaintiff must satisfy one of three conditions:

First, the plaintiff may prove that a city

employee committed the alleged constitutional

violation pursuant to a formal governmental

policy or a longstanding practice or custom

which constitutes the standard operating pro-

cedure of the local governmental entity. Second,

the plaintiff may establish that the individual

who committed the constitutional tort was an

official with final policy-making authority and

that the challenged action itself thus constituted

an act of official governmental policy. Whether a

particular official has final policy-making

authority is a question of state law. Third, the

plaintiff may prove that an official with final

policy-making authority ratified a subordinate’s

unconstitutional decision or action and the basis

for it.

Gillette v. Delmore, 979 F.2d 1342, 1346-1347 (9th Cir. 1992)

(citations and internal quotations omitted), cert. denied,

510 U.S. 932, 114 S. Ct. 345, 126 L. Ed. 2d 310 (1993).

After proving that one of the three circumstances

existed, a plaintiff must also show that the circumstance

10a

was (1) the cause in fact and (2) the proximate cause of

the constitutional deprivation. Arnold v. International Busi-

ness Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see

also City of Springfield v. Kibbe, 480 U.S. 257, 266-68, 107 S.

Ct. 1114, 94 L. Ed. 2d 293 (1987) (discussing causation

requirement in section 1983 municipal liability cases).

a. Violation by policy or custom

Prior to the robbery, the City had not adopted a

formal policy of indemnifying individual police officers

for punitive damage judgments. On the contrary, the City

considers each case individually on its merits pursuant to

Cal. Govt. Code § 825(b). As we have noted, this practice

is not facially unconstitutional. Cornwell, 896 F.2d at 399.

Absent a formal governmental policy, Trevino must

show a “longstanding practice or custom which consti-

tutes the standard operating procedure of the local gov-

ernment entity.” Gillette, 979 F.2d at 1346-47. The custom

must be so “persistent and widespread” that it constitutes

a “permanent and well settled city policy.” Monell v. Dept.

of Soc. Serv. of N.Y., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036,

56 L. Ed. 2d 611 (1978). Liability for improper custom

may not be predicated on isolated or sporadic incidents;

it must be founded upon practices of sufficient duration,

frequency and consistency that the conduct has become a

traditional method of carrying out policy. pennett v. City

of Slidell, 728 F.2d 762, 767 (5th Cir. 1984). See also: Meehan

v. Los Angeles County, 856 F.2d 102 (9th Cir. 1988) (two

incidents not sufficient to establish custom); Davis v.

lla

Ellensburg, 869 F.2d 1230 (9th Cir. 1989) (manner of one

arrest insufficient to establish policy).?

The City contends that no indemnification custom

exists and, in fact, that prior to the fatal shooting the City

Council had never voted to pay a punitive damage award

against an individual officer. Trevino argues that by vot-

ing to settle some civil rights cases and posting appeal

bonds in others, the City indirectly engaged in a custom

or policy of indemnifying punitive damage awards.

As of January 30, 1995, the Councilmembers voted

that the City pay punitive damages in approximately

eleven or twelve police-related lawsuits filed since 1985,

when Cal. Gov. Code § 825(b) was enacted. The Coun-

cilmembers submitted unrebutted evidence that their

votes to pay punitive damages occurred after assuring

| compliance with Cal. Govt. Code § 825(b) and upon

advice of the City Attorney. More importantly, the Coun-

cilmembers did not vote that the City should pay puni-

tive damages in any police case prior to February 12,

1990, the date the McDonald’s robbery occurred. From

1985 to the date the district court granted summary judg-

ment, the Council voted against the payment of punitive

damages in two police-related lawsuits.

2 Liability based on custom is different from liability based

on ratification or delegation where a single incident causally

related to the constitutional deprivation may be sufficient for

liability to attach. City of St. Louis v. Praprotnik, 485 U.S. 112, 127,

108 S. Ct. 915, 99 L. Ed. 2d 107 (1988); Pembaur v. City of

Cincinnati, 475 U.S. 469, 483, 106 S. Ct. 1292, 89 L. Ed. 2d 452

(1986).

————

12a

Only those police officers who are represented in

litigation by the City Attorney are eligible to have puni-

tive damages awards paid by the City. Cal. Gov. Code

§ 995 et seq. provides that municipal employees are enti-

tled to legal representation at City expense if they are

sued for acts that (i) occurred within the course and scope

of employment, and (ii) did not involve actual malice,

fraud or corruption. Under this standard, LAPD officers

have been denied representaticn in at least twenty law-

suits, some of which occurred prior to February 12, 1990.

Officers denied representation for acting with malice or

beyond the scope of employment must pay their own

legal fees and punitive damages.

The City has also settled police-related lawsuits after

a jury verdict awarding punitive damages and prior to

appeal. The record establishes that the purpose of settling

such cases is to minimize the cost to the City’s treasury

and taxpayers. Settlements are recommended by the City

Attorney and approved by the City Council when it is

apparent that the costs of appeal and further litigation,

exposure for attorneys’ fees and costs, and the potential

for an increased damage award in the event of a retrial

make it likely that the ultimate cost to the City’s treasury

will exceed the settlement figure. From January 1985

through October 1994, the City settled approximately sev-

enteen or eighteen lawsuits after a verdict.

There is no genuine issue of material fact concerning

cases in which action was taken by the Councilmembers

prior to February 12, 1990, the date Bahena was killed.

There were nine excessive forces cases in which punitive

damages were awarded that the Council voted to settle

13a

prior to February 12, 1990.3 The plaintiff waived payment

of punitive damages in four of the nine settled cases. In

two additional cases, the Councilmembers did not vote to

settle until after February 12, 1990, but prior to that date

the Councilmembers voted to post a bond on the judg-

ment for compensatory and punitive damages pending

appeal. The bond was posted based upon the advice of

the City Attorney. Nothing in the record indicates that the

bond was ever executed.

Viewing plaintiff’s evidence in the light most favor-

able to her, the undisputed evidence falls far short of

establishing a “persistent and widespread” practice such

that it constitutes “permanent and well settled” city pol-

icy. The record is virtually devoid of any direct evidence

of council indemnification prior to the shooting. The

record as to the indirect claims reveals a varied and

inconsistent ad hoc practice of resolving excessive force

cases prior to the incident in question. If there is a pat-

tern, it is more reflective of normal municipal claims

adjusting with all its inconsistencies and imperfections

than of subtle conspiracy to indemnify officers outside

3 The City submitted a chart detailing cases from 1979 to

1994 involving punitive damages. Trevino alleges that the first

eighteen cases pre-date the incident. However, she is mistaken

because the date on the chart is not the date of settlement,

payment or bonding of punitive damages. Three of the eighteen

cases were settled, paid or bonded after February 12, 1990. In

two of the eighteen, the City did not pay, settle or bond punitive

damages. One of the cases is not an excessive force case and one

case had a result which was unknown to the City. Of the eleven

remaining cases, the City voted to post bond in two and voted to

settle nine prior to February 12, 1990. In four of the settled cases,

punitive damages were waived as part of the settlement.

14a

the public eye. When one must resort to inference, conjec-

ture and speculation to explain events, the challenged

practice is not of sufficient duration, frequency and con-

sistency to constitute an actionable policy or custom.

Normally, the question of whether a policy or custom

exists would be a jury question. However, when there are

no genuine issues of material fact and the plaintiff has

failed to establish a prima facie case, disposition by sum-

mary judgment is appropriate. The moving party on a

motion for summary judgment bears the “initial respon-

sibility of informing the district court of the basis for its

motion. ...” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The defendants met

their initial burden. The burden then shifts to the non-

moving party to provide evidence sufficient to establish

that there is a genuine issue of material fact as to each

element essential to that party’s case on which that party

will bear the burden of proof at trial. Id. at 322-325.

Trevino failed to meet her burden of rejoinder and the

City is entitled to judgment as a matter of law.

Because we find as a matter of law that Trevino has

failed to establish a “custom or policy,” we need not

analyze whether the alleged policy or custom was the

cause in fact and the proximate cause of the constitutional

deprivation.

b. Action by a person with final policy-making author-

ity.

The second circumstance under which a municipality

may incur section 1983 liability is when the individual

who committed the constitutional tort was an official

15a

with “final policy-making authority” and that the chal-

lenged action itself thus constituted an act of official

government policy. Gillette, 979 F.2d at 1346. As to mat-

ters of police policy, the chief of police under some cir-

cumstances may be considered the person possessing

final policy-making authority. Larez v. City of Los Angeles,

946 F.2d 630, 646 (9th Cir. 1991). The police officers who

shot Bahena were not “officials with final policy-making

authority” and they were not ordered to shoot by the

police chief, the City Council or anyone else possessing

final policy-making authority. Thus, the City is not liable

under this theory.

c. Ratification

Trevino argues that by voting to pay the Gomez puni-

tive damage awards, the City ratified the officers’ con-

duct. Gillette’s ratification test is satisfied if a plaintiff can

“prove that an official with final policy-making authority

ratified a subordinate’s decision or action and the basis

for it.” Gillette, 979 F.2d at 1346-1347; see also City of St.

Louis v. Praprotnik, 485 U.S. 112, 127, 99 L. Ed. 2d 107, 108

S. Ct. 915 (1988).

We have found municipal liability on the basis of

ratification when the officials involved adopted and

expressly approved of the acts of others who caused the

constitutional violation. See, e.g., Hammond v. County of

Madera, 859 F.2d 797, 802-803 (9th Cir. 1988) (board, which

was responsible for approving transfers of rights-of-way,

accepted and approved of transfer documents that

resulted in deprivation of constitutional rights); Larez v.

City of Los Angeles, 946 F.2d 630, 645-648 (9th Cir. 1991)

l6a

(individual filed a complaint with the LAPD alleging

excessive force was used against him in a search, LAPD

investigated it, and the police chief signed a letter stating

that none of the complaints would be sustained, thereby

ratifying the investigation and search); Fuller v. City of

Oakland, 47 F.3d 1522, 1526 (9th Cir. 1995) (an officer

investigated complaints of sexual harassment, and police

chief who approved investigator’s report and conclusion

that there was no harassment ratified the investigator’s

conclusion).

By contrast, the City Council in this case was not

deciding whether to approve the officers’ conduct; it was

debating whether or not to compensate victims of the

constitutional deprivation. The City Council deliberated

for two days, considering many points of view. In the

end, it found that payment of punitive damages “would

be in the best interest” of the City. Thus, under these

circumstances, the Councilmembers’ vote to pay punitive

damages does not amount to ratification.

Were we to find ratification, our holding would fly in

the face of Cornwell by indirectly finding that a munici-

pality’s payment of punitive damages under Cal. Govt.

Code § 825(b) violates federal law. Cornwell, 896 F.2d at

399. Further, such a holding would deter any munici-

pality from choosing to pay victims of constitutional vio-

lations, thus thwarting the very purpose of section 1983.

Because we find no ratification, we need not discuss

whether the alleged ratification was the cause in fact and

proximate cause of the constitutional deprivation.

17a

d. Conclusion

Therefore, because there is no genuine issue of mate-

rial fact as to whether Trevino can establish any of the

three Gillette theories, the district court correctly granted

the City summary judgment.

DISCOVERY ISSUES

Trevino argues that she was denied discovery. Speci-

fically, Trevino argues she should have been afforded the

opportunity pursuant to Rule 56(f) to receive the tape-

recordings of closed-session Councilmember delibera-

tions regarding votes to pay punitive damages and to

depose the Councilmembers and members of the City

Attorney’s staff as to each specific instance in which

punitive damages were discussed.

We review a denial of a Rule 56(f) motion for abuse

of discretion. Maljack Prods, Inc. v. GoodTimes Home Video

Corp., 81 F.3d 881, 887 (9th Cir. 1996). The district court

did not abuse its discretion because, among other rea-

sons: (1) Trevino failed to identify the disputed issues in

her Rule 56(f) motion; (2) Trevino’s counsel was in fact

afforded the opportunity to listen to the recordings;* and

(3) Trevino did not timely challenge the Magistrate

4 Trevino argues that the City was required to produce

copies of the recordings, but she never raised this argument

before the district court in the form of a motion to compel. Also,

a party who produces documents for inspection is not required

to make copies for the other party. See 8A Charles A. Wright et

al., Federal Practice and Procedure § 2213 (1994).

18a

Judge’s order staying the depositions as required by Rule

72(a), F.R.Civ.P.5

FAILURE TO GIVE JURY INSTRUCTION

ON PRESUMED DAMAGES

Trevino argues that the district court erred when it

refused to instruct the jury that presumed damages may

be recovered by a section 1983 plaintiff. The jury instruc-

tions stated that compensatory damages may be awarded

upon proof of actual injury, and in the absence of such

proof, nominal damages for violation of a constitutional

right are appropriate. When a party claims that the trial

court’s jury instruction misstated the elements that must

be proved at trial, we review the instruction de novo.

Gizoni v. Southwest Marine Inc., 56 F.3d 1138, 1142 (9th

Cir.), cert. denied _ U.S. __, 116 S. Ct. 361, 133 L. Ed. 2d

304 (1995).

Damages are not presumed to flow from every con-

stitutional violation. Carey v. Piphus, 435 U.S. 247, 263, 98

S. Ct. 1042, 55 L. Ed. 2d 252 (1978). Presumed damages

are appropriate when there is a great likelihood of injury

coupled with great difficulty in proving damages. Id. at

5 Rule 72(a) states that a party must file objections to a

Magistrate Judge’s order within 10 days, and “a party may not

thereafter assign as error a defect in the magistrate judge’s order

to which object was not timely made.” The record reveals that

Trevino never appealed the Magistrate Judge’s order to the

district court. Trevino does not dispute this fact in her appellate

briefs. Trevino’s failure to comply with Rule 72(a) precludes her

from challenging the Magistrate Judge’s order on appeal. Palmer

v. United States, 794 F.2d 534, 540 (9th Cir. 1986); McKeever v.

Block, 932 F.2d 795, 799 (9th Cir. 1991).

19a

264. A presumed damage instruction is not required

when, as in this case, “the jury was fully authorized to

compensate respondent for both monetary and nonmone-

tary harms caused by petitioners’ conduct.” Memphis

Community School District v. Stachura, 477 U.S. 299, 312,

106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986). Here, Trevino ably

presented evidence and argued to the jury she was enti-

tled to compensatory damages for emotional and eco-

nomic harm. The case was submitted to the jury on

Trevino’s compensatory damage theory. Under these cir-

cumstances, a presumed damages instruction was not

mandated.

If the jury fails to find actual injury, nominal damage

awards for constitutional violations are appropriate. See

George v. City of Long Beach, 973 F.2d 706, 708 (9th Cir.

1992) (nominal damages instruction is appropriate in

§ 1983 case against police officers alleging warrantless

arrest when no actual damages are proved), cert. denied

507 U.S. 915, 113 S. Ct. 1269, 122 L. Ed. 2d 664 (1993);

Draper v. Coombs, 792 F.2d 915, 921 (9th Cir. 1986).

Accordingly, the district court did not err in refusing

to instruct the jury on the availability of presumed dam-

ages.

TESTIMONY EXCLUSION

Trevino claims the district court erred by excluding

her own testimony and that of her economic damage

experts.

The district court precluded Trevino’s own testimony

under Fed. R. Evid. 403, finding its probative value was

20a

outweighed by its prejudicial effect. The district court has

considerable latitude in performing a Rule 403 balancing

test and we will uphold its decision absent clear abuse of

discretion. Rogers v. Raymark Industries, Inc., 922 F.2d

1426, 1430 (9th Cir. 1991). The fact that a party can pre-

sent the relevant testimony through other witnesses is a

factor that weighs in favor of exclusion of the prejudicial

testimony. Id.

The district court did not abuse its discretion in

refusing to allow Trevino to testify. Trevino would have

testified regarding the emotional distress she suffered

due to the loss of her father. Trevino was not yet born

when her father was killed, and she was only five years

old at the time of the trial. The district court thus con-

cluded that there was little probative value to Trevino’s

testimony because she could not meaningfully testify as

to the distress she had suffered in the past or would

suffer in the future. Trevino’s counsel intended to ques-

tion her on her “impression of what happened to her

father . . . and how she thinks her father died.” The

district court concluded that any probative value of Trev-

ino’s testimony was outweighed by the clear prejudicial

effect of having a highly sympathetic child testify who

knew nothing about the circumstances of her father’s

death. More importantly, Trevino was given the oppor-

tunity to introduce evidence of her emotional distress

through a psychiatrist who had examined her. Although

we disfavor exclusion of a plaintiff’s own testimony, we

find under these circumstances, the district court did not

abuse its discretion in refusing to allow Trevino to testify.

Trevino also appeals the district court’s exclusion of

expert testimony for lack of foundation. “The trial court

2la

has broad discretion in admitting and excluding expert

testimony, and the court’s action will be sustained unless

it is manifestly erroneous.” LuMetta v. United States

Robotics, Inc., 824 F.2d 768, 771 (9th Cir. 1987) (internal

quotations omitted). “TW]here foundational facts demon-

strating relevancy . . . are not sufficiently established,

exclusion of proffered expert testimony is justified.” Id.

Two experts were excluded: an economist to project

Bahena’s future income and a domestic relations lawyer

to opine how much of the future income stream Bahena

could have been required to pay Trevino’s mother as

child support. Both opinions were predicated on the

assumption that Bahena was employed as a full time

mechanic when he was killed. The only foundation laid

for this assumption was testimony that (1) Bahena left in

the morning and returned in the evening; (2) he gave

Trevino’s mother money at fairly regular intervals and (3)

he was observed on a few occasions working on cars.

There were no pay stubs, no W-2s, no tax returns, no

cancelled checks, and no employer testimony offered as

foundational evidence. Given the state of the record, it

was not manifestly erroneous for the district court to

exclude the expert testimony for lack of foundation. See

Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 207 (2nd

Cir. 1984) (vague assurances about future support are not

an adequate foundation for expert testimony on future

income).

COLLATERAL ESTOPPEL

Trevino claims she should be entitled to relitigate the

Gomez punitive damage award, which she contends was

22a

grossly inadequate. The district court reasoned that the

interests of Trevino and her grandmother were identical

with regard to punitive damages and held that Gomez

punitive damage verdict collaterally estopped relitigation

of the issue in this case.

“Whether collateral estoppel is available is a mixed

question of law and fact subject to de novo review.” Town

of North Bonneville v. Callaway, 10 F.3d 1505, 1508 (9th Cir.

1993). Federal law governs the collateral estoppel effect of

a case decided by a federal court. Fireman’s Fund Ins. Co.

v. International Market Place, 773 F.2d 1068, 1069 (9th Cir.

1985). To foreclose relitigation of an issue under federal

law:

(1) the issue at stake must be identical to the one

alleged in the prior litigation; (2) the issue must

have been actually litigated [by the party

against whom preclusion is asserted] in the

prior litigation; and (3) the determination of the

issue in the prior litigation must have been a

critical and necessary part of the judgment in

the earlier action.

Town of North Bonneville, i0 F.3d at 1508 (citations omit-

ted). Trevino contends that the first two elements have

not been met.

The issue of the amount of punitive damages to be

awarded to Trevino is identical to the issue of punitive

damages in Gomez. We have precluded the litigation of

punitive damages for conduct which was the subject of

punitive damages in a prior action. Bates v. Union Oil

Company of California, 944 F.2d 647, 649-651 (9th Cir. 1991);

cert. denied, 503 U.S. 1005, 112 S. Ct. 1761, 118 L. Ed. 2d

424 (1992). The Supreme Court has held that “the amount

23a

of the punitive award is initially determined by a jury

instructed to consider the gravity of the wrong and the

need to deter similar wrongful conduct.” Pacific Mutual

Life Insurance Company v. Haslip, 499 U.S. 1, 15, 111 S. Ct.

1032, 113 L. Ed. 2d 1 (1991). Punitive damage awards are

founded on the defendants’ conduct. The wrongfui con-

duct of defendants to be deterred is identical in both

Gomez and this case: the use of excessive force.

Trevino argues, however, that the wrongful conduct

to be deterred is the deprivation of Trevino’s constitu-

tional liberty interest in her relationship with her father.

In contrast, Trevino’s grandmother was deprived of her

constitutional liberty interest in her relationship with her

son. Trevino contends that her liberty interest in her

relationship with her father is thus distinct from her

grandmother’s liberty interest.

We recognize that “a child’s interest in her relation-

ship with a parent is sufficiently weighty by itself to

constitute a cognizable liberty interest.” Smith v. City of

Fontana, 818 F.2d 1411, 1419 (9th Cir.), cert. denied 484 U.S.

935, 108 S. Ct. 311, 98 L. Ed. 2d 269 (1987); see also

Crumpton v. Gates, 947 F2d 1418, 1424 (9th Cir. 1991).

Nonetheless, Trevino’s argument fails. The violation of

Trevino’s liberty interest in her relationship with her

father bears on the harm suffered by Trevino, rather than

the conduct to be deterred. The violation of Trevino’s

liberty interest is therefore addressed through compensa-

tory damages rather than punitive damages. Accordingly,

the issue of the amount of punitive damages to be

awarded against the officers for use of excessive force is

identical in both Gomez and in this case.

24a

The second element of collateral estoppel is that the

issue must have been actually litigated by the party

against whom estoppel is asserted. Although Trevino was

not a party in Gomez, a “person technically not a party to

the prior action may be bound by the prior decision if his

interests are so similar to a party’s that that party was his

virtual representative in the prior action.” United States v.

Geophysical Corporation of Alaska, 732 F.2d 693, 697 (9th

Cir. 1984) (internal quotations omitted); see also Shaw v.

Hahn, 56 F.3d 1128, 1131 (9th Cir.), cert. denied, __ US.

__, 116 S. Ct. 418, 133 L. Ed. 2d 336 (1995). Sufficient

similarity of interests to justify the application of collat-

eral estoppel has been found in a variety of cases. See,

e.g., In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983)

(similarity of interests found between a close corporation

and its sole or controlling stockholder); Shaw, 56 F.3d at

1131-1132 (juror was collaterally estopped from litigating

issue of discriminatory use of peremptory challenges;

juror’s interests were virtually represented by plaintiff in

prior proceeding who objected to the discriminatory use

of such challenges). “Although a familial relationship

need not, in and of itself, confer privity status, it does

constitute an important factor when assessing the preclu-

sive effects of a prior adjudication.” Jaffree v. Wallace, 837

F.2d 1461, 1467 (11th Cir. 1988).

The interests of Trevino’s grandmother in Gomez and

the interests of Trevino in this case are identical with

regard to the punitive damages to be awarded against the

officers for the use of excessive force against Trevino’s

father. Trevino’s grandmother had tremendous incentive

in Gomez to see the officers severely punished for their

actions. Trevino has the same goal in this action. Thus,

25a

the interests of Trevino and her grandmother are so simi-

lar that Trevino’s grandmother virtually represented

Trevino in Gomez. See Geophysical, 732 F.2d at 697.

Although a familial relationship does not necessarily con-

fer privity status, the relationship between Trevino and

her grandmother is sufficient in this case. See Jaffree, 837

F.2d at 1467.

Accordingly, all of the elements of collateral estoppel

are satisfied, and the district court did not err.

ATTORNEYS’ FEES

At the conclusion of the case, Trevino moved for

attorneys’ fees pursuant to 42 U.S.C. § 1988 in the amount

of $495,885. The district court found that Trevino was

entitled to recover reasonable attorneys’ fees under

§ 1988. The district court calculated the fee by determin-

ing a reasonable hourly rate. Trevino’s counsel submitted

evidence that the reasonable hourly rate in the commu-

nity for experienced private attorneys handling complex

litigation ranged from $250 to $550/hour. However, the

district court noted that the City had submitted evidence

in Gomez, 804 F. Supp. 69, that the City pays private

attorneys that it hires to defend excessive force cases

$175/hour maximum, $125 to $135/hour for attorneys

with partner status and experience, and $90 to $125/hour

for associates. Relying on these defense rates, the district

court held that $135/hour for lead counsel and $100/

hour for associate counsel was reasonable in this case

because it involved mostly simple issues. The district

court awarded $25,000 in fees. On appeal, Trevino argues

26a

that the district court erred in using defense attorney

rates in choosing an appropriate hourly rate.

We review an attorney’s fees award pursuant to 42

U.S.C. § 1988 for abuse of discretion. Corder v. Gates, 947

F.2d 374, 377 (9th Cir. 1991). “As such, the district court’s

fee award will be overturned if it is based on an inaccu-

rate view of the law or a clearly erroneous finding of

fact.” Id.

Under Section 1988, the reasonable hourly rate is

determined by “considering the experience, skill and rep-

utation of the attorney requesting fees.” Schwarz v. Secre-

tary of Health & Human Services, 73 F.3d 895, 908 (9th Cir.

1995) (citations and internal quotations omitted). This

determination “should be guided by the rate prevailing

in the community for similar work performed by attor-

neys of comparable skill, experience, and reputation.” Id.

(citations and internal quotations omitted). In setting a

reasonable hourly rate, a district court may consider the

factors developed in Johnson v. Georgia Highway Express,

Inc., 488 F.2d 714, 717-719 (5th Cir. 1974), which we

approved in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67,

69-70 (9th Cir. 1975), cert. denied 425 U.S. 951, 96 S. Ct.

1726, 48 L. Ed. 2d 195. Davis v. City and County of San

Francisco, 976 F.2d 1536, 1546 (9th Cir. 1992), vacated on

other grounds 984 F.2d 345 (1993); see also McGrath v.

County of Nevada, 67 F.3d 248, 252 (9th Cir. 1994). The

Johnson-Kerr factors “include the novelty and difficulty of

the issues involved in a case, [and] the skill required to

litigate those issues. . . . ” Davis, 976 F.2d at 1546.

The district court did not abuse its discretion in

reducing the rate requested by Trevino because many of

27a

the issues were not complex. An individual attorney need

not be awarded the same hourly rate in all Section 1983

cases because not all such cases are equally complex.

Here, the only issue that was tried was the compensatory

damages due to Trevino, which the district court appro-

priately characterized as “the equivalent of a lawsuit over

compensatory damages in a state wrongful death case.”

Trevino’s attorney had already conducted a full trial on

the same issue with respect to other parties in Gomez. The

liability of the police officers was already determined in

Gomez. The case was tried three times before a jury. The

district court did not err in concluding that these issues

were not complex. In addition, the district court correctly

recognized that some issues, such as collateral estoppel

and qualified and absolute immunity, were complex. The

district court’s opinion on these points is well-reasoned.

However, the district court should not have relied on

the rates paid by the City to private attorneys for defend-

ing excessive force cases as a starting point for the rea-

sonable hourly rate. In determining the reasonable hourly

rate, the court should be guided by “the rate prevailing in

the community for similar work performed by attorneys

of comparable skill, experience, and reputation.” Schwarz,

73 F.3d at 908. “As the Supreme Court made clear in

Blum .. . the proper reference point in determining an

appropriate fee award is the rates charged by private

attorneys in the same legal market as prevailing coun-

sel....” Davis, 976 F.2d at 1547 (citing Blum v. Stenson,

465 U.S. 886, 895, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984)).

Private attorneys hired by a government entity to defend

excessive force cases are not in the same legal market as

private plaintiff’s attorneys who litigate civil rights cases.

28a

In addition, attorneys hired by a government entity to

defend excessive force cases are not acting as “private”

attorneys at all.

The Eleventh Circuit ruled on this issue in Brooks v.

Georgia State Board of Elections, 997 F.2d 857, 869-870 (11th

Cir. 1993). In Brooks, when setting a reasonable hourly

rate for the plaintiff’s attorney, the district court relied on

the rate charged by a private attorney hired by the state

to defend the case. The Brooks court stated:

We have recognized in the past that private

attorneys often charge lower rates to the gov-

ernment because of counterbalancing benefits

such as repeat business, and [w]here the facts

show this, the fee charged by a government

attorney is simply irrelevant to the establish-

ment of a reasonable hourly rate for a plaintiff’s

civil rights lawyer.

Id. at 869 (citations and internal quotations omitted). The

Eleventh Circuit held that “it was clear error for the

district court panel to rely so heavily on the rate paid to

opposing counsel. We remand the case to it so that the

hourly rate can be fixed free of this error.” Id. at 870.

We agree with the Eleventh Circuit. Here, the rates

charged by private attorneys to defend excessive force

cases on behalf of the City were significantly lower than

the evidence submitted by Trevino regarding prevailing

rates in the community for private attorneys in the same

legal market as Trevino’s attorney. Of course, we are

mindful that the district court used the defense rates in

Gomez without any complaint by Trevino’s counsel. In

fact, we do not necessarily disagree with the final result

reached by the district court and this decision does not

29a

preclude the district court from reaching the same deci-

sion after consideration of different hourly rates. None-

theless, we remand this issue for reanalysis in light of our

adoption of Brooks.

ATTORNEYS’ FEES AND COSTS ON APPEAL

A plaintiff is entitled to attorneys’ fees under § 1988

when:

(1) it wins on the merits of its claim, (2) the relief

it receives materially alters the legal relationship

between the parties by modifying the defen-

dant’s behavior, and (3) the relief directly bene-

fits the plaintiff.

Martinez v. Wilson, 32 F.3d 1415, 1422 (9th Cir. 1994).

“When a party meets with partial success on appeal, we

have deemed it proper to award fees only for those

claims successfully defended on the merits.” Larez, 946

F.2d at 649. Trevino was successful only on the issue of

attorneys’ fees. However, Trevino will receive a direct

benefit only if the attorneys’ fee award is increased on

remand. Thus, whether Trevino is entitled to fees with

respect to her appeal regarding attorneys’ fees cannot be

determined until after remand. In the event the district

court increases the amount of attorneys’ fees awarded to

Trevino, the district court is directed to set and award a

reasonable attorneys’ fee for Trevino’s appellate efforts

relating to the attorneys’ fee issue. The parties shall each

bear their own costs of appeal.

30a

CONCLUSION

The district court’s decisions concerning summary

judgment, discovery issues, testimony exclusion and pre-

sumed damages are affirmed. The district court’s judg-

ment as to attorneys’ fees is vacated for reanalysis

consistent with this opinion. AFFIRMED in part,

VACATED in part, and REMANDED. No costs allowed.