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Ninth Circuit: Despite Award of Only Nominal Damages, Attorney Fees Appropriate in § 1983 Wrongful Death Suit

Ninth Circuit: Despite Award of Only Nominal Damages, Attorney Fees Appropriate in § 1983 Wrongful Death Suit

Despite a jury’s award of only nominal damages, the Ninth Circuit affirmed the award of attorney’s fees to a plaintiff who filed suit under 42 U.S.C. § 1983 (and various provisions of state law) following the death of her son as a result of excessive force by California Highway Patrol Officer Larry Depee.

On the night of December 9, 2003, during a struggle over a flashlight, Officer Depee shot and killed John Watkins, an unemployed 40-year-old American Yurok Indian with a long history of schizophrenia and drug and alcohol abuse. A forensic pathologist found that Watkins was “lying on his left side with his right arm raised up in a ‘warding off’ gesture, and that Watkins could not have been swinging the flashlight at the time of his death.”
Also, only one of Watkins’ fingerprints was found on the flashlight; had he been using it as a weapon, presumably it would have had more of his fingerprints.

Watkins’ mother, Sylvia Mahach-Watkins, subsequently filed suit on behalf of both herself and her son’s estate, alleging various state and federal causes of action.

The case went to trial and the jury returned a verdict in favor of Mahach-Watkins on two of her claims – a state law wrongful death claim and a Fourth Amendment excessive force claim. As to the latter, the jury was instructed that it could award no more than one dollar in nominal damages regardless of what the evidence showed. As to the state law claim, the jury was instructed that it could return an award commensurate with what the evidence proved. The jury awarded one dollar in nominal damages on each of the two claims.

Mahach-Watkins then moved for $700,000 in attorney’s fees under 42 U.S.C. § 1988. The district court awarded fees, but reduced the amount to $136,687.35 to reflect Mahach-Watkins’ limited success on her § 1983 excessive force claim.

Depee appealed the fee award, and on February 1, 2010 the Ninth Circuit held that it was guided by Justice O’Connor’s concurrence in Farrar v. Hobby, 506 U.S. 103 (1992), which found that a judgment for nominal damages can support an award of attorney’s fees only where the district court can point to some way – beyond the moral satisfaction of the judgment itself – in which the litigation succeeded.

The district court had considered dispositive two of the three factors identified in Farrar, namely (1) the significance of the legal issue on which the plaintiff prevailed and (2) whether the plaintiff had accomplished some public goal. The Ninth Circuit agreed, stating with respect to the first factor, “We have difficulty imagining a more important issue than the legality of state-sanctioned force resulting in death.” As to the second factor, the Court of Appeals noted that, at the very least, the jury’s verdict would serve the public goal of likely deterring Officer Depee from using unconstitutionally excessive force in the future.

The U.S. Supreme Court denied Depee’s petition for writ of certiorari on January 10, 2011. See: Mahach-Watkins v. Depee, 593 F.3d 1054 (9th Cir. 2010), cert. denied.

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Related legal case

Mahach-Watkins v. Depee