Maria J. Morales v. Sony Fry and Brian Rees

The primary issue in this appeal is whether the “clearly

established” prong of the qualified immunity analysis should

be submitted to a jury. Following the lead of nearly all of

our sister circuits, we conclude that it is a question of law

that must ultimately be decided by a judge.

Background

This case arises from Maria Morales’s arrest during the

May 1, 2012 “May Day” protests in Seattle. Morales, who

was attending one of the rallies, was in downtown Seattle

when Seattle Police Department officers began forming a

“bike perimeter” on Pike Street to create a zone where a

person who was arrested earlier could be safely moved to a

transport van.

Officer Brian Rees asked Morales, who is five feet tall,

110 pounds, to move away from the street so that he could

place his bicycle on the sidewalk as part of the perimeter.

6 MORALES V. FRY

When Morales did not appear to hear him, he placed his right

hand on her left shoulder to gain her attention. Rees testified

that Morales pulled her arm away from him abruptly and

said, “Get your fucking hand off of me” before stepping

back.1 Rees then lost sight of Morales.

Morales ended up squeezed between the sidewalk wall

and the outside of the bike perimeter. She heard conflicting

instructions from officers to move either east or west away

from the perimeter. Eventually, there was an opening on the

west side and Morales began to follow others who were

moving west single file between the wall and the bike

perimeter.

The way was narrow and Morales testified that she

needed to turn Officer Sonya Fry’s protruding bicycle

handlebar to the side to create room to pass. Fry testified

that she simultaneously perceived what felt like a punch to

her chest. Seeing Morales closest to her, Fry believed that

Morales had punched her and yanked Morales headlong over

the bike, causing Morales to fall on her back on top of other

bikes within the bike perimeter zone. Multiple officers then

converged upon Morales while she was on the ground.

At some point during this altercation, with several

officers holding Morales, Morales briefly lurched off the

ground onto her feet. At this point, Rees, who had not been

involved in subduing Morales, reached over and discharged

his pepper spray in Morales’s eyes for approximately one

quarter of a second. The surrounding officers, including

Rees, then physically subdued Morales.

1 In a video of the incident, Morales is heard saying repeatedly,

“Don’t touch me,” but not using profanity.

MORALES V. FRY 7

Morales was arrested and charged with assault for the

blow that Officer Fry perceived. Fry’s initial police report

stated that Morales yelled “Okay, bitch!” before punching

her in the chest with a closed fist. When video of the incident

surfaced online, the charges against Morales were dismissed.

At trial, Fry conceded that she never heard Morales say

“Okay, bitch!”, that no one can be heard uttering those words

on the video, and that she never saw Morales punch her in

the chest.

Morales brought suit against the City of Seattle and

several of the officers involved, making unlawful arrest and

excessive force claims against Officer Fry and an excessive

force claim against Officer Rees (collectively, the

“Officers”). At summary judgment, the district court ruled

that disputed factual issues, including whether Morales had

said “Okay, bitch!” and whether she had punched Officer

Fry, precluded granting Fry qualified immunity on the

unlawful arrest and excessive force claims. The district

court also ruled that disputed factual issues, including

whether Officer Rees’s use of pepper spray was accidental

or intentional, precluded granting Rees qualified immunity

on the excessive force claim.

The case then proceeded to a five-day jury trial. At the

close of Morales’s case-in-chief, the district court denied the

Officers’ motion for judgment as a matter of law under Fed.

R. Civ. P. 50(a). The district court gave the jury instructions

on the unlawful arrest and excessive force claims. Morales

objected to Jury Instruction Nos. 20 and 21, arguing that they

impermissibly submitted the legal question of qualified

immunity to the jury.

The jury found for Morales on her excessive force claim

against Rees, but not on her unlawful arrest and excessive

8 MORALES V. FRY

force claims against Fry. The jury awarded $0 in damages

to Morales.

After trial, the parties stipulated to $1 in nominal

damages as required under Floyd v. Laws, 929 F.2d 1390,

1402–03 (9th Cir. 1991) (mandating an award of nominal

damages where a jury finds a constitutional violation). The

district court then denied Rees’s renewed motion for

judgment as a matter of law under Fed. R. Civ. P. 50(b), and

awarded Morales $165,405 in attorney’s fees as the

prevailing party against Rees.

The Officers cross-appeal the district court’s denial of

qualified immunity to Rees on his Rule 50(b) motion, as well

as the district court’s award of attorney’s fees to Morales as

the prevailing party against Rees.

Analysis

I. Challenge to Jury Instructions on Qualified

Immunity

A. Role of Judge or Jury as Decider

Qualified immunity shields government officials from

civil liability unless a plaintiff establishes that: (1) the

official violated a constitutional right; and (2) that right was

“clearly established” at the time of the challenged conduct,

such that “every reasonable official” would have understood

that what he is doing violates that right. Ashcroft v. al-Kidd,

563 U.S. 731, 735, 741 (2011) (citation and internal

quotation mark omitted). The chief issue in this appeal is

whether the second prong of the qualified immunity

analysis, whether the constitutional right was “clearly

MORALES V. FRY 9

established,” should have been submitted to the jury.2 We

hold that the “clearly established” inquiry is a question of

law that only a judge can decide.

Morales’s appeal of the jury’s verdict in favor of Fry

centers on Jury Instruction Nos. 203 and 214. The parties and

2 Morales preserved this issue for appeal. Her counsel objected that

the issue of qualified immunity necessarily involves a question of law

and so no jury instruction could be proper on that point. Having objected

to having the jury decide the legal issue in the first place, Morales did

not need to propose an instruction. The heart of her objection was

abundantly clear from the colloquy with the court.

3 In its entirety, Jury Instruction No. 20 stated:

This instruction relates to Plaintiff’s federal law

claim for unlawful arrest against Defendant Sonya

Fry.

Defendant Fry contends that her arrest of Plaintiff

was justified by her reasonable belief that this action

was permitted or required and, therefore, lawful. If

Defendant Fry reasonably believed that probable

cause existed to arrest Plaintiff, and acted on the basis

of that belief, then her reasonable belief would

constitute a complete defense to the Plaintiff’s claim

even if, in fact, the arrest was not lawful. Put another

way, even if you find that Defendant Fry violated

Plaintiff’s constitutional rights by unlawfully arresting

her, Defendant Fry cannot be liable if she reasonably

believed at the time she acted that her actions were in

accordance with the law. But keep in mind that this

reasonableness inquiry is an objective one. The

question is whether every reasonable officer under

those same circumstances would believe that there was

no reasonable basis for the arrest.

4 Jury Instruction No. 21 stated in almost identical terms:

10 MORALES V. FRY

the district court agree that those instructions capture the

“clearly established” question. That understanding is

reflected in their text. Both instructions stated that “even if

you find that [the Defendants] violated Plaintiff’s

constitutional rights . . . [the Defendants] cannot be liable if

[they] reasonably believed at the time [they] acted that

[their] actions were in accordance with the law. But keep in

mind that this reasonableness inquiry is an objective one.

The question is whether every reasonable officer under those

same circumstances would believe that” the action was

unlawful. Rather than focusing on whether Morales’s

constitutional rights were violated, these instructions look to

whether the officers would have known their conduct

violated Morales’s rights, an inquiry that requires the court

to determine whether the law was “clearly established.” See

This instruction relates to Plaintiff’s federal law

claim for excessive force against Defendants Sonya

Fry and Brian Rees.

Defendants Fry and Rees contend that their use of

force on Plaintiff was justified by their reasonable

beliefs that their actions were permitted or required

and, therefore, lawful. If the officers reasonably

believed that the force used was lawful, and acted on

the basis of that belief, then their reasonable beliefs

would constitute a complete defense to the Plaintiff’s

claim even if, in fact, the force was not lawful. Put

another way, even if you find that Defendants Fry or

Rees violated Plaintiff’s constitutional rights by using

excessive force, Defendants cannot be liable if they

reasonably believed at the time they acted that their

actions were in accordance with the law. But keep in

mind that this reasonableness inquiry is an objective

one. The question is whether every reasonable officer

under those same circumstances would believe that the

use of force was unlawful.

MORALES V. FRY 11

Ashcroft, 563 U.S. at 741; Pearson v. Callahan, 555 U.S.

223, 244 (2009).

It was error for the district court to submit this inquiry to

the jury. To understand why, it is useful to start with the

foundations of the doctrine of qualified immunity. The

doctrine protects public officials “from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Pearson, 555 U.S.

at 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). Accordingly, the two prongs of qualified

immunity balance two important, competing interests: the

need to hold public officials accountable for irresponsible

actions, and the need to shield them from liability when they

make reasonable mistakes. Id.

By design, the issue of qualified immunity is usually

resolved “long before trial.” See Hunter v. Bryant, 502 U.S.

224, 228 (1991) (per curiam). The Supreme Court has

repeatedly stressed the importance of deciding qualified

immunity “at the earliest possible stage in litigation” in order

to preserve the doctrine’s status as a true “immunity from suit

rather than a mere defense to liability.” See id. at 227

(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

Early determination is often possible “because qualified

immunity most often turns on legal determinations, not

disputed facts.” Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th

Cir. 1994). In addition, courts are now empowered to

address the two prongs in whichever order would expedite

resolution of the case. See Pearson, 555 U.S. at 236–39

(noting that it is frequently “quick[er] and easi[e]r” to

determine whether a constitutional right was clearly

established than whether it was violated), overruling Saucier

v. Katz, 533 U.S. 194 (2001).

12 MORALES V. FRY

In particular, the question of whether a particular

constitutional right is “clearly established” is one that the

Supreme Court has increasingly emphasized is within the

province of the judge. To be sure, this inquiry has always

involved examining established precedent at a certain level

of granularity.

The Court first adopted the “clearly established”

standard in 1982 in Harlow v. Fitzgerald out of concern that

whether officials met the previous “good faith” standard,

which included a subjective element, was too frequently

being considered a question of fact for juries to decide. See

457 U.S. at 815–17 & n.27. The Court hoped that an

objective inquiry into whether an official’s conduct

“violate[d] clearly established statutory or constitutional

rights of which a reasonable person would have known”

would by contrast “permit the resolution of many

insubstantial claims on summary judgment.” See id. at 818.

In recent years, the Court has tightened the inquiry to

focus closely on an analysis of existing precedent. In 2011,

the Court clarified that while it “do[es] not require a case

directly on point . . . existing precedent must have placed the

statutory or constitutional question beyond debate,” such

that “every” reasonable official—not just “a” reasonable

official—would have understood that he was violating a

clearly established right. Ashcroft, 563 U.S. at 741

(emphasis added). In later cases, the Court reiterated that

clearly established law should not be defined “at a high level

of generality” and that the “dispositive question” is “whether

the violative nature of particular conduct is clearly

established.” See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 308

(2015) (per curiam) (quoting Ashcroft, 563 U.S. at 742).

And this year in White v. Pauly, the Court stated that barring

an “obvious case” under Graham v. Connor, 490 U.S. 386

MORALES V. FRY 13

(1989), or Tennessee v. Garner, 471 U.S. 1 (1985), the

“clearly established” analysis in the excessive force context

requires the court to “identify a case where an officer acting

under similar circumstances . . . was held to have violated

the Fourth Amendment.” 137 S. Ct. 548, 552 (2017) (per

curiam) (emphasis added).

The upshot is that qualified immunity was conceived as

a summary judgment vehicle, and the trend of the Court’s

qualified immunity jurisprudence has been toward resolving

qualified immunity as a legal issue before trial whenever

possible. This approach presents a dilemma when, as here,

a qualified immunity case goes to trial because disputed

factual issues remain. Qualified immunity is then

transformed from a doctrine providing immunity from suit

to one providing a defense at trial. See Torres v. City of Los

Angeles, 548 F.3d 1197, 1211 n.9 (9th Cir. 2008).

Nonetheless, comparing a given case with existing statutory

or constitutional precedent is quintessentially a question of

law for the judge, not the jury. A bifurcation of duties is

unavoidable: only the jury can decide the disputed factual

issues, while only the judge can decide whether the right was

clearly established once the factual issues are resolved. See,

e.g., Dimick v. Schiedt, 293 U.S. 474, 486 (1935) (“The

controlling distinction between the power of the court and

that of the jury is that the former is the power to determine

the law and the latter to determine the facts.”).

We recognized this principle in Tortu v. Las Vegas

Metropolitan Police Department, where we explained that

“whether a constitutional right was violated . . . is a question

of fact” for the jury, while “whether the right was clearly

established . . . is a question of law” for the judge. 556 F.3d

1075, 1085 (9th Cir. 2009). Similarly, in Act Up!/Portland

v. Bagley, we acknowledged that although facts related to an

14 MORALES V. FRY

officer’s knowledge and what conduct actually occurred

could be disputed material facts to be determined by the fact

finder, “whether the law governing the conduct at issue is

clearly established is a question of law for the court.”

988 F.2d 868, 873 (9th Cir. 1993).

The Ninth Circuit’s Model Civil Jury Instructions

support our view. They state that the Ninth Circuit Jury

Instructions Committee “has not formulated any instructions

concerning qualified immunity because most issues of

qualified immunity are resolved before trial, or the ultimate

question of qualified immunity is reserved for the judge to

be decided after trial based on the jury’s resolution of the

disputed facts.” Ninth Circuit Model Civil Jury Instruction

9.34 (2017) (noting that “qualified immunity is a question of

law, not a question of fact.”). As the Model Instructions

explain, “[w]hen there are disputed factual issues that are

necessary to a qualified immunity decision, these issues

must first be determined by the jury before the court can rule

on qualified immunity. The issue can then be raised in a

[Federal Rule of Civil Procedure] Rule 50(a) motion at the

close of evidence.” Id. (citing Tortu, 556 F.3d at 1083).

Nearly all our sister circuits agree with the position we

adopt here. The First, Second, Third, Fourth, Sixth, Seventh,

Eighth, Eleventh, and D.C. Circuits take the view that

whether a right is clearly established is a legal issue for the

judge to decide, although special interrogatories to the jury

can be used to establish disputed material facts. See, e.g.,

Curley v. Klem, 499 F.3d 199, 211 (3d Cir. 2007) (noting

that a district court that submits the clearly established

inquiry to the jury commits “reversible error”); Pitt v. Dist.

of Columbia, 491 F.3d 494, 509–10 (D.C. Cir. 2007);

Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005);

Littrell v. Franklin, 388 F.3d 578, 584 (8th Cir. 2004);

MORALES V. FRY 15

Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir.

2004); Acevedo-Garcia v. Monroig, 351 F.3d 547, 563 (1st

Cir. 2003); Johnson v. Breeden, 280 F.3d 1308, 1318 (11th

Cir. 2002) (“Qualified immunity is a legal issue to be

decided by the court, and the jury interrogatories should not

even mention the term. Instead, the jury interrogatories

should be restricted to the who-what-when-where-why type

of historical fact issues.” (citation omitted)); Pouillon v. City

of Owosso, 206 F.3d 711, 718 (6th Cir. 2000); Warlick v.

Cross, 969 F.2d 303, 305 (7th Cir. 1992).5 By contrast, only

the Fifth Circuit has unequivocally endorsed the jury

determining whether the right was clearly established if

qualified immunity is not decided until trial. See McCoy v.

Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).

The Officers argue that the jury instructions were proper

because we have previously allowed the issue of qualified

immunity to be asserted at trial, citing three cases: Sloman v.

Tadlock, 21 F.3d 1462, 1468 (9th Cir. 1994), Ortega v.

O’Connor, 146 F.3d 1149, 1155 (9th Cir. 1998), and

Thorsted v. Kelly, 858 F.2d 571 (9th Cir. 1988). None of

these cases is persuasive. Sloman explicitly reserved the

question “whether judge or jury should be the ultimate

decider once disputed foundational facts have been decided

by the jury.” 21 F.3d at 1468. In Ortega, the question

whether a jury should be instructed on qualified immunity

was not at issue: instead, “the only actual question on appeal

as to the qualified immunity issue [wa]s whether substantive

5 The Tenth Circuit also considers this the “better approach,”

although it acknowledges certain rare and “exceptional circumstances

where historical facts are so intertwined with the law” that the court can

permissibly “define the clearly established law for the jury” and then

allow the jury to “determine [whether] what the defendant actually did

. . . was reasonable in light of the clearly established law.” See Gonzales

v. Duran, 590 F.3d 855, 860-61 (10th Cir. 2009).

16 MORALES V. FRY

law that the court set forth in the jury instructions was correct

and whether i[t] was clearly established in 1981.” 146 F.3d

at 1156. And to the extent that Ortega and Thorsted

suggested that the “clearly established” prong could be

submitted to the jury, we conclude that those cases are

clearly irreconcilable with intervening Supreme Court

authority. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003) (en banc) (explaining that cases are clearly

irreconcilable where the higher court “ha[s] undercut the

theory or reasoning underlying the prior circuit precedent”).

Ortega and Thorsted employed a qualified immunitymethod

of analysis evoking “double reasonableness” that has now

been explicitly repudiated by the Supreme Court. See

Saucier, 533 U.S. at 202–03; Katz v. United States, 194 F.3d

962, 965 (9th Cir. 1999), overruled by 533 U.S. 194; Ortega,

146 F.3d at 1155–56; Thorsted, 858 F.2d at 575.

For these reasons, the district court erred in submitting

the “clearly established” inquiry to the jury. The district

court did not determine as a matter of law what the

“established law” was nor did it offer the jury the

opportunity to decide separately any factual determinations

related to this prong of qualified immunity.

B. Harmlessness

In light of the jury instruction error, we consider whether

the error was harmless. See Dang v. Cross, 422 F.3d 800,

804, 811 (9th Cir. 2005) (explaining that reversal is not

required when “it is more probable than not that the jury

would have reached the same verdict”). We conclude that

MORALES V. FRY 17

the error was not harmless with respect to Morales’s claims

against Officer Fry.6

Here, the special verdict forms only asked the jury:

Question 1: Do you find for Plaintiff Maria

Morales on her federal-law (§ 1983) claim

for unlawful arrest against Defendant Sonya

Fry?

Answer: _ (Yes) X (No)

Question 2: Do you find for Plaintiff Maria

Morales on her federal-law (§ 1983) claim

for excessive force against Defendant Sonya

Fry?

Answer: _ (Yes) X (No)

Because the jury answered “No” to both questions, we

cannot determine if they found a constitutional violation.

One possibility is that the jury believed Officer Fry’s version

of events, found no underlying constitutional violation, and

so did not need to consider application of the clearly

established rule set out in Jury Instruction Nos. 20 and 21.

And even if the jury did so, whatever it found under these

instructions would be surplusage. In that scenario, the jury

would have found against Morales regardless. The district

6 No party challenges the jury instructions with respect to Morales’s

excessive force claim against Officer Rees. Officer Rees waived any

challenge to the jury instructions, since he offered them, and Morales

does not challenge the jury instructions since she prevailed on this claim.

18 MORALES V. FRY

court’s ability to make a contrary finding would have been

extremely constrained.

However, another very realistic scenario is that the jury

believed Morales’s version of events, found one or more

underlying constitutional violations, but also concluded that

Fry reasonably believed her actions were in accordance with

the law (although it was not defined for the jury). Had there

been a jury finding of a constitutional violation, the question

of clearly established law then would have been put to the

district court on a Rule 50(b) motion. The district court

could then have either granted or denied Fry qualified

immunity.

We have no way of divining which scenario actually

happened. As a result, we cannot conclude that it is more

probable than not that Morales would have lost her claims

against Fry had the jury been properly instructed. See Dang,

422 F.3d at 804, 811.7 Consequently, we must vacate the

verdict with respect to Morales’s unlawful arrest and

excessive force claims against Officer Fry and remand for a

new trial on these claims.

On remand, the district court has discretion to employ

either a general verdict form, or submit special

interrogatories to the jury regarding the disputed issues of

material fact. See Fed. R. Civ. P. 49. Either way, once the

7 Nor can we determine as a matter of law that Morales’s

constitutional rights were not clearly established. Whether Officer Fry

had probable cause to arrest Morales, and therefore reasonably believed

that it was lawful to pull her over the bicycle, depends on disputed factual

issues that the jury never resolved in specific interrogatories, including

whether Morales said “Okay, bitch!” and whether she punched Officer

Fry.

MORALES V. FRY 19

jury returns its verdict, the ultimate determination of whether

Officer Fry violated Morales’s clearly established rights is a

question reserved for the court.8

II. Rule 50(b) Motion

The district court properly denied Officer Rees’s

renewed motion for judgment as a matter of law on qualified

immunity. Because the jury found in favor of Morales on

her excessive force claim against Officer Rees, the district

court was required to construe the trial evidence in the light

most favorable to Morales in determining whether her rights

were clearly established. See Cal. Highway Patrol, 712 F.3d

at 453.

Based on the evidence presented at trial, the jury could

have reasonably decided that Rees’s use of the pepper spray

against Morales was retaliatory. Rees testified that several

minutes before the incident between Officer Fry and

Morales, he had a prior encounter with Morales where he

placed a hand on her shoulder while informing her that she

needed to move in a certain direction, and Morales had

responded with “something to the effect of, ‘Get your

fucking hand off of me.’” Rees testified that he subsequently

8 We note that, as here, the difficulty of inferring how the jury

decided disputed factual issues based on a general verdict has often

resulted in multiple rounds of litigation. See, e.g., Curley, 499 F.3d 199

(3d Cir. 2007) (“Curley II”); Curley v. Klem, 298 F.3d 271 (3d Cir. 2002)

(“Curley I”); see also Stephenson v. Doe, 332 F.3d 68 (2d Cir. 2003).

Accordingly, the better practice may be for the district court to include

the factual interrogatories. See, e.g., Curley, 499 F.3d at 203–04

(providing examples of specific interrogatories); Stephenson, 332 F.3d

at 81 (same). Nonetheless, if the district court employs a general verdict,

it can still decide the clearly established issue on a Rule 50(b) motion by

resolving all factual disputes in favor of the prevailing party. See, e.g.,

A.D. v. Cal. Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013).

20 MORALES V. FRY

lost track of Morales but recognized her again when she “got

back up onto her feet” after being pulled over the bike by

Fry. As the district court suggested, the jury could have

believed that, having recognized Morales from the earlier

encounter, Rees intentionally pepper-sprayed her in

retaliation for her earlier rudeness, and then claimed that he

discharged his pepper spray accidentally.

If Rees had done so, he would have violated Morales’s

clearly established right not to have pepper spray used “to

intimidate . . . or retaliate against” her. Young v. Cty. of Los

Angeles, 655 F.3d 1156, 1162 (9th Cir. 2011). In addition,

intentionally pepper-spraying Morales for no legitimate law

enforcement reason would likely constitute an “obvious

case” of excessive force “where Graham and Garner alone

offer a basis for decision.” See Brosseau v. Haugen,

543 U.S. 194, 199 (2004) (per curiam) (citing Graham,

490 U.S. 386; Garner, 471 U.S. 1). Accordingly, we affirm

the district court’s denial of qualified immunity as to Officer

Rees.

III. Attorney’s Fees

The district court did not abuse its discretion in awarding

Morales $165,405 in attorney’s fees. In a § 1983 action, “the

court, in its discretion, may allow the prevailing party . . . a

reasonable attorney’s fee as part of the costs.” 42 U.S.C.

§ 1988(b). A plaintiff who receives a nominal damage

award for a § 1983 claim is a prevailing party under § 1988,

but “[i]f a district court chooses to award fees after a

judgment for only nominal damages, it must point to some

way in which the litigation succeeded, in addition to

obtaining a judgment for nominal damage.” Mahach-

Watkins v. Depee, 593 F.3d 1054, 1059 (9th Cir. 2010)

(citation omitted).

MORALES V. FRY 21

The Ninth Circuit has adopted Justice O’Connor’s

concurrence in Farrar v. Hobby, which set forth three factors

a district court should consider in determining whether a

plaintiff succeeded in some way beyond the judgment for

nominal damages. See Mahach-Watkins, 593 F.3d at 1059

(citing Farrar v. Hobby, 506 U.S. 103, 121 (1992)

(O’Connor, J., concurring)). The three factors are: (1) the

difference between the amount recovered and the damages

sought, which in most nominal damages cases will disfavor

an award of fees; (2) the significance of the legal issue on

which the plaintiff claims to have prevailed; and (3) whether

the plaintiff accomplished some public goal. Id. (citing

Farrar, 506 U.S. at 121 (O’Connor, J., concurring)). We

have held that “where the district court properly has weighed

these three factors, the resulting award of attorney’s fees is

not an abuse of its discretion.” See id. at 1060 (internal

quotation marks and citation omitted).

Here, the district court properly weighed all three factors

in its fee order. The district court first noted that Morales

only received $1 in nominal damages, as opposed to the

approximately $62,500 Morales sought on her excessive

force claim against Officer Rees. The district court

acknowledged that this factor weighed against Morales, but

noted that it was not dispositive, since otherwise attorney’s

fees would never be awarded in nominal damages cases. See

id. We note, however, that the difference between the

damages sought and those awarded here is less dramatic than

in other cases where courts have denied fees. In Farrar, the

Supreme Court denied fees where the plaintiff asked for $17

million in damages and received $1. 506 U.S. at 121

(O’Connor, J., concurring). And we have denied attorney’s

fees where plaintiffs had sought $2 million dollars in

compensatory and punitive damages, but requested only

22 MORALES V. FRY

“some sum like one dollar” at closing argument. Romberg

v. Nichols, 48 F.3d 453, 454 (9th Cir. 1995).

The second factor compares the significance of the legal

issue on which the plaintiff claims prevailed to other issues

that circuit courts have held to qualify as important under

this factor. Rees argues that the use of “a split second” of

pepper spray is not as legally significant as an officer’s use

of deadly force. We don’t disagree, but the district court

found that the use of pepper spray is deemed to be

intermediate force that is capable of “inflicting significant

pain and causing serious injury.” Young, 655 F.3d at 1161.

While the use of pepper spray is “less severe than deadly

force, [it] nonetheless present[s] a significant intrusion upon

an individual’s liberty interests.” Id. at 1161–62. In

Mahach, we favorably contrasted the importance of an

officer’s use of deadly force to that of other issues such as

the right to be free from discrimination in school-sponsored

contact sports, the right to be free from illegal detention, and

the right to be free from cruel and unusual punishment. See

593 F.3d at 1062. Compared to these other issues, the use of

pepper spray on protestors constitutes a significant legal

issue.

The third factor looks to whether the plaintiff

accomplished some public goal. Rees argues that the

precedential value of the excessive force finding is limited,

since Rees claims that he “had no memory of deploying the

spray” in the “chaotic and unclear circumstances” of the

protest. But as Rees concedes, the jury must have decided

that his use of pepper spray on Morales was intentional. The

district court found that Morales had accomplished a public

goal, because the jury’s excessive force finding put police

officers on notice that intentionally “pepper spray[ing]

unarmed, already-restrained but mildly-resistant suspects,

MORALES V. FRY 23

even in loud and chaotic protest situations” violated clearly

established law, and it was likely that “in light of the

heightened civil protests this past year . . . the police will

find themselves in strikingly similar situations.” This

finding is consistent with Mahach, where we concluded that

the nominal damages award accomplished a public goal of

having a deterrent effect on police officers, even if the police

department involved in the shooting did not change its

formal policies or practices as a result of the lawsuit.

593 F.3d at 1062.9

Finally, the district court did not abuse its discretion in

the amount of fees awarded. The district court reduced the

fees from the $298,762 requested to $165,405. In so doing,

the district court reduced Morales’s attorneys’ hourly fees,

determined the reasonable number of hours needed to secure

Morales’s victory on her excessive force claim, and reduced

the amount of hours billed by one-third to one-half to

generate the lodestar amount. By contrast, Rees’s proposal

that Morales should only be awarded $6,494.83 because she

9 Rees points to Benton v. Oregon Student Assistance Commission

as support for the proposition that Morales should not be awarded

attorney’s fees because the litigation did not accomplish a public goal.

421 F.3d 901 (9th Cir. 2005). Notably in Benton, we found that no public

goal was accomplished because the defendant had voluntarily rectified

his wrongful conduct before the district court’s finding of a

constitutional violation and award of nominal damages. Id. at 907. Here,

there is no evidence that Rees or the Seattle Police Department

voluntarily admitted fault at any point in the proceedings, or that the

Seattle Police Department has modified its policies on pepper spray.

24 MORALES V. FRY

only prevailed on 1 of the 46 claims in her original complaint

is an unreasonable metric.

AFFIRMED IN PART, VACATED IN PART, and

REMANDED IN PART. Each party shall pay its own

costs on appeal.

BEA, Circuit Judge, dissenting.

I respectfully dissent because I believe the district court

did not err in submitting Jury Instructions Nos. 20 and 21.

But even if submission of the instructions were error,

Morales failed to preserve the issue for appeal.

First, the district court did not ask the jury to determine

a question of law. Counsel for plaintiff did not and does not

say what language in the jury instructions directed the jury

to decide what was the “clearly established” law at the time

of Morales’s arrest. Nor did counsel for plaintiff identify any

language in the jury instructions which told the jury that it

was their duty to determine the “clearly established” law.

Therefore, the district court did not err because the jury

instructions did not submit any question of law to the jury.

Second, even if the jury instructions were deficient

because they did not sufficiently explain to the jury what was

the “clearly established” law at the time (or what conduct

would be “in accordance with the law”), Morales did not

specifically object to the jury instructions on that

basis. See Dist. Ct. Dkt. No. 121 at 2 (“It’s my view that

qualified immunity is a legal question, and that the jurors

should be submitted factual questions, not questions of

mixed fact and law, in the Ninth Circuit. So I would argue

that those two instructions, 20 and 21, are not proper.”); see

MORALES V. FRY 25

also Fed. R. Civ. P. 51(c) (“A party who objects to an

instruction or the failure to give an instruction must do so on

the record, stating distinctly the matter objected to and the

grounds for the objection.”). Morales objected on the

grounds that Jury Instructions Nos. 20 and 21 submitted a

“legal question,” or, alternatively, a “question[ ] of mixed

fact and law” to the jury. She did not identify the legal

question (or question of mixed fact and law) which the

instructions purportedly submitted to the jury. That “legal

question” as to “qualified immunity” was precisely what was

the “clearly established” law which any reasonable officer

would know. Indeed, she did not object to the fact that the

jury instructions failed to inform the jury of the “clearly

established” law at the time. Nor did she “distinctly” state

what was the “clearly established” law that the district court

should have instructed the jury. Therefore, I would hold that

Morales waived any argument that the jury instructions

failed to explain to the jury what was the “clearly

established” law at the time of her arrest because she failed

to object distinctly to the instructions on that ground before

the district court.

Although I disagree with the majority’s conclusion that

the district court erred in submitting the two instructions to

the jury, I agree with the conclusion that the error (assuming

now that there is one) was not harmless. It is impossible to

determine on the basis of the special verdict form whether

the jury decided that Officer Fry had not violated Morales’s

constitutional rights at all, or that Officer Fry had violated

Morales’s constitutional rights, but that those rights were not

clearly established. It is not “more probable than not that the

jury would have reached the same verdict had it been

properly instructed.” Dang v. Cross, 422 F.3d 800, 811 (9th

Cir. 2005) (quoting Galdamez v. Potter, 415 F.3d 1015,

26 MORALES V. FRY

1025 (9th Cir. 2005)). Therefore, I agree that if the

instruction were error, then it would not have been harmless.

However, because I continue to believe the district court

did not err in submitting Jury Instructions Nos. 20 and 21 to

the jury, I respectfully dissent.

AFFIRMED IN PART, VACATED IN PART, and

REMANDED IN PART. Each party shall pay its own

costs on appeal.