The opinion of the court was delivered by: Susan Illston United States District Judge
ORDER RE: POST-TRIAL MOTIONS AND PLAINTIFFS' ENTITLEMENT TO ATTORNEYS' FEES
On July 29, 2005, the Court heard oral argument on post-trial motions by the parties and plaintiffs' motion regarding their entitlement to reasonable attorneys' fees. Having carefully considered the arguments of counsel and the papers submitted, the Court hereby DENIES defendants' motions for judgment as a matter of law and a new trial, DENIES plaintiffs' request for injunctive relief, and GRANTS plaintiffs' motion for entitlement to fees.
This case arose out of three protests in the fall of 1997, staged by environmental activists who opposed the logging of ancient redwood trees in the Headwaters Forest along California's northern coasts. During the events, protestors locked themselves together using self-releasing lock-down devices called "black bears," steel cylinders with a rod welded into the center. From 1990 to 1997, law enforcement officers from the Humboldt County Sheriff's Department used hand-held electric grinders to remove black bears from the arms of protestors. Beginning in the fall of 1997, the Sheriff's Department organized a "special response team" that began using olesoresin capsicum aerosol ("OC" or "pepper spray") to force the protestors to release themselves from the black bears. This use of pepper spray under these circumstances was "entirely unprecedented: . . . it had never been used in Humboldt County, the State of California, or anywhere in the country against nonviolent protestors." Headwaters Forest Defense v. Humboldt County, 276 F.3d 1125, 1128 (9th Cir. 2002) ("Headwaters II").
Nine protestors*fn1 filed an action under 42 U.S.C. § 1983, alleging that the use of pepper spray at the three events constituted excessive force in violation of the Fourth Amendment. The plaintiffs sought damages for pain, emotional trauma, and the violation of their constitutional rights, as well as punitive damages. Because none sought medical treatment for any physical injuries, they claimed no special damages. The case was originally assigned to another judge of this court. Defendants brought a motion for summary judgment, and that judge granted qualified immunity to all individual defendants except for Humboldt County Sheriff Dennis Lewis and Chief Deputy Sheriff Gary Philp, the policymakers who authorized the use of pepper spray. The court did not grant summary judgment to the defendants on excessive force, finding that there were too many factual disputes about whether the use of pepper spray was necessary to effect the arrests of the protestors.
The case went to trial in 1998. At the close of plaintiffs' case, defendants Lewis and Philp moved for judgment as a matter of law on qualified immunity. The court granted the motion and dismissed the case against the two individual defendants. The jury deadlocked on the issue of municipal liability for excessive force. The judge declared a mistrial, set a new trial date, and took under submission defendants' renewed motion for judgment as a matter of law. Eight weeks later, the judge granted defendants' motion and entered judgment in their favor.
Plaintiffs appealed, and the Ninth Circuit Court of Appeals reversed the grant of judgment as a matter of law, holding that the district court erred in failing to view the evidence in the light most favorable to the plaintiffs, the non-moving party. Headwaters Forest Defense v. Humboldt County, 240 F.3d 1185, 1197 (9th Cir. 2001) ("Headwaters I"). The Ninth Circuit first considered "whether a reasonable jury could conclude that police use of pepper spray constitutes excessive force," and held that it could. Id. at 1206. Then, it turned to the qualified immunity inquiry and also reversed the district court's grant of immunity to defendants Lewis and Philp, finding that historical facts were in dispute regarding the reasonableness of the use of pepper spray, and regarding what Lewis and Philp "knew and did" when they authorized its use. Id. at 1209.
After Headwaters I, the U.S. Supreme Court granted certiorari, vacated the Ninth Circuit's judgment, and remanded the case for further consideration by the Court of Appeals in light of Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001). In Saucier, the Supreme Court clarified the appropriate test for qualified immunity in excessive force cases. First, a court must ask whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the officers' conduct violated a constitutional right. Saucier, 533 U.S. at 205. If this question is answered in the affirmative, the court must then move to the second step of the inquiry and ask "whether the right was clearly established," such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 206.
The Ninth Circuit applied Saucier and answered both questions in the affirmative, concluding that the officers were not entitled to qualified immunity "because the use of pepper spray on the protestors' eyes and faces was plainly in excess of the force necessary under the circumstances, and no reasonable officer could have concluded otherwise." Headwaters II, 276 F.3d at 1131. The Court of Appeals then remanded this case to the district court for further proceedings consistent with its decisions: specifically, the decision in Headwaters II that defendants Lewis and Philp were not entitled to qualified immunity prior to trial, and the decision in Headwaters I reversing the district court's entry of judgment as a matter of law on behalf of the County and City defendants.
The case was re-assigned to this Court, which held a re-trial to a jury in September 2004 on the issue of excessive force. That jury deadlocked, and the Court declared a mistrial. The Court then heard post-trial motions from the parties. It denied all of these motions except for a renewed motion by defendants for judgment as a matter of law on punitive damages and a motion by plaintiffs to re-open discovery to allow experts to testify at the third trial.
A third jury trial was held in April 2005. At this trial, police practices experts for each party testified. The jury returned a verdict in favor of plaintiffs, finding that defendants' application of pepper spray to plaintiffs constituted excessive force. Nominal damages were awarded to plaintiffs in the amount of $1 each. On May 3, 2005, the Court entered judgment in favor of plaintiffs.
Now before the Court are a renewed motion by defendants for judgment as a matter of law on the excessive force claim, or in the alternative, for a new trial, and a motion by plaintiffs regarding their entitlement to attorneys' fees.*fn2 In plaintiffs' opposition to defendants' post-trial motions, they also request injunctive relief.
1. Renewed Motion for Judgment as a Matter of Law ("JMOL")
If for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment. In ruling on a renewed motion after a verdict is returned, the court may: (A) allow the judgment to stand, (B) order a new trial, or (C) direct entry of judgment as a matter of law.
Under Rule 50, the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The burden borne by the party moving for judgment as a matter of law is a heavy one. All credibility determinations, weighing of evidence, and drawing of inferences from the evidence are jury functions. Id. at 253. Hence, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. If, however, there is "no substantial evidence" to support the non-moving party's claim, the court must grant judgment as a matter of law. California Computer Products v. IBM, 613 F.2d 727, 733 (9th Cir.1979). Substantial evidence is more than a scintilla of evidence. See Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938); Chisholm Bris. Farm Equip. Co. v. International Harvester Co., 498 F.2d 1137, 1140 (9th Cir. 1974). Rather, it is defined as such relevant evidence as reasonable minds might accept as adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from the evidence. See Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987).
Rule 59 of the Federal Rules of Civil Procedure provides that "[a] new trial may be granted . . . for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Rule 59 gives the trial judge the power to prevent a miscarriage of justice. Moist Cold Refrigerator Co. v. Lou Johnson Co., 249 F.2d 246 (9th Cir. 1957). A new trial may be ordered to correct manifest errors of law or fact, but "the burden of showing harmful error rests on the party seeking the new trial." Malhiot v. Southern California Retail Clerks Union, 735 F.2d 1133 (9th Cir. 1984).
A motion for new trial may invoke the court's discretion insofar as it is based on claims that "the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to party moving; and may raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury ." Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). A new trial should be granted where, after giving full respect to the jury's findings, the judge "is left with the definite and firm ...