Punitive Damages Against Officer in Federal Injury Suit Reversed, Attorney’s Fees Awarded to Plaintiff

In a suit against a police officer, the U.S. District of Court for the Northern District of California reversed a jury’s punitive award against the officer, denied the officer’s qualified immunity defense and request for a new trial, and refused to find the officer’s use of force reasonable; the plaintiff’s attorney was awarded $103,396.82 in fees.

Aleksandr Binkovich was taken to the ground and arrested by Officer Bruce Barthelmy, suffering a bloody nose, the loss of his jewelry and seven days in jail as a result. At trial, the jury held Barthelmy’s conduct was excessive and awarded Binkovich compensatory and punitive damages. Balthemy subsequently filed motions for judgement as a matter of law, claiming qualified immunity, the use of reasonable force and the erroneous award of punitive damages. He also sought a new trial. Binkovich’s attorney filed a motion for attorney’s fees. On August 15, 2014, the District Court reversed the award of punitive damages but denied Barthelmy’s other motions and granted Binkovich’s motion for attorney’s fees in part, refusing to decrease or increase the amount in the defendant’s or plaintiff’s favor, respectively.

Binkovich was at a party with friends at a hotel one night when police were eventually called due to the noise they were making. By the time the police officers arrived at the hotel lobby, Binkovich and his friends were exiting an elevator. As Binkovich stepped from the elevator and attempted to walk past the officers to the front desk, Barthelmy grabbed his shoulder. Binkovich brushed his hand away, and Barthelmy knocked his legs from under him, pushed his face onto the floor and grabbed his wrist in a wristlock.

However, the officers testified that Binkovich had stumbled from the elevator, smelling of alcohol and swinging a belt over his head like a weapon. Barthlemy touched Binkovich’s shoulder and guided him toward the wall to talk, but Binkovich knocked the officer’s hand away and became aggressive. At that point, Binkovich was reportedly taken to the floor. Binkovich then filed suit in the district court against Barthelmy and three other defendants, alleging excessive force. The case proceeded to trial in which the jury determined only Barthelmy’s liability and awarded Binkovich compensatory and punitive damages. Following the verdict, Barthelmy filed his motions for relief and Binkovich sought attorney’s fees.

In its order, the district court stated that while there is no exact time when qualified immunity must be raised, its delayed assertion will fail if it causes the non‐moving party prejudice. In this case, the fact that Barthelmy had made a “brief reference to qualified immunity as a stock defense in his answer” before trial was not sufficient to raise the defense. Raising it now, the district court stated, would prejudice Binkovich as the cost and expense of the litigation rose to “thousands of dollars.” The defense had therefore been waived.

Secondly, the district court denied Barthelmy’s motion for judgement as a matter of law on his use of force. The jury had found “substantial evidence,” through testimony, discounting the officer’s version of events and that the officer’s use of force had not been reasonable where “in light of the supporting evidence,” he had failed to establish that Binkovich had refused command to submit and had resisted the subsequent use of force.

Next, for the jury to avoid punitive damages, it had to find, according to federal law, “evil motive or intent,” “reckless or callous indifference” to the plaintiff’s constitutional rights or “oppression,” each based on “substantial evidence.” Holding that “[n]ot a single witness [had] testified as to any overt cruelty by Barthelmy” and that Barthelmy’s “methods of apprehension [ ] had been vetted and approved, “the district court granted his motion as a matter of law to strike the punitive award.

Finally, the court denied Barthelmy’s motion for a new trial, the jury’s verdict “not represent[ing] a ‘miscarriage of justice’” and leaving no “definite and firm conviction that a mistake [had] been committed by the jury,” as required by law.

The district court then assessed Binkovich’s motion for reasonable attorney’s fees. Binkovich sought an hourly rate of $450 per hour based on market value in the community and on his attorney’s experience. Binkovich calculated 227 hours of expended work on the suit by his attorney and further requested a 50 percent enhancement of the fees due to the suit’s “undesirability.”

In granting Binkovich’s motion for attorney’s fees in part, the district court rejected Barthelmy’s argument that the hours calculated were erroneous and that the $450 billing rate was too high. The officer also claimed that the attorney’s fees should be cut by 75 %, based on Binkovich’s attorney’s “limited success,” namely that only one officer was found liable and not all that were initially sued. The district court disregarded this argument, stating that despite Binkovich succeeding only against Barthelmy, all of Binkovich’s claims succeeded rather than some.

Of the $103,396.82 award, Binkovich’s attorney will receive over $100,000 in fees. See: Binkovich v. Barthelmy, U.S.D.C. (N.D. Cal.), Case no. 5:11‐cv‐03774‐PSG.

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