good morning i represent the city of cambridge maryland and its police officers in this case i know that your honour's are very familiar with the background in the prior appeals of this case and so i won't go into that the legal issue here is that we asserted in this appeal that the district court erred as a matter of law that's abusing its discretion by awarding attorneys fees in any amount under these circumstances so we don't dispute the cane is a prevailing party however prevailing party status means only that a plaintive who obtains nominal damages is eligible for rather than entitled to an award of fees and in far vs hobby the united states supreme court held that one prevailing party recovers only nominal damages due to its failure to prove an essential element of his claim for monetary relief he achieves only a de minimus and technical victory for which the appropriate fee is no fee  all and that's what we're starting here the reason the only claim at trial was a claim for wrongful death and that was after a long history that your honour's are well aware of and the plaintiff it's not like mercer where the jury awarded one dollar in this case the one dollar a nominal damages is because kane failed to show an essential element of his claim which is proximate cause nation so it's distinguishable from mercer in that respect and in many others and because he failed to show proximate cause is an essential element of  you were covered nominal damages you know there are the exceptions certainly not the rule but mercer was the exception so there are some circumstances  where that if an attorney's fee can be awarded would not be an abuse of discretion to do that you may or may not want to address the factors from ferrara that the mercer court  used but it's not a purse a rule that you don't recover damages i agree with everything your honor said it's our session that this is the usual case in which no fee at all is appropriate and then if if you do move on to none again because he did not prove proximate cause ation as an element of his claim so in mercer this court held that the objective in korea applies it's not a subjective inquiry wherein you look to the relief that was sought compared to what was obtained and here what was obtained was none of what was sought because the plaintiff here sought unlimited or unknown amount of compensatory damages and received only one dollar after dollar in compensatory damages and then they also awarded her two million dollars in punitive damages but the court later held that punitive damages were not available and so this court held that even though she came away with extremely limited relief she was nevertheless entitle to attorney's fees because it was the unusual case and the reason it was unusual is that her case had established a new rule of law you into significance or into the next factor right and that leads into the second and third factors exactly and they overlap somewhat but the legal significance of the matter on which she prevailed and then the public purpose in mercer is far different from in this case could you make an argument that there the public import of this case is at least affected by the fact that the litigation brought to light that the official account of the police practices in this case was perhaps not fully accurate but the jury had not credited what the official account of what happened was you know that the police had in fact not been announced i mean it's not in not every knock and announce case is that a result that it turns out there was an official account of a controversial police practice that was exposed as untrue at trial or some public transparency value and that well i would respectfully disagree with the characterization of the jury's verdict because what the jury hell i mean what they marked off on the verdict sheet was that the officers failed properly to knock on our holy milk in a new we just don't know what that meant because no special interactive tories were provided to the jury so we don't know if they feel as if the officers never knocked and that's what mr cain had alleged or if the jury believed that they did not but they just didn't wait long enough before entering the apartment and they didn't give him a chance to come to the door so based on that jury verdict nothing of public import was decided it was just a purely factual decision by the jury that hey they did something wrong we're not sure what it is but they violated the not going announce rule in some manner and so there's a constitutional violation but there's actually no injury and damages the follow from that because of the lack of proximate cause nation and the fact that the only claim a trial was her wrongful death the jury also held that the death was not wrongful they said it was not excessive force for the police officer bryan loose to sh and in fact in mercer although her relief was limited she established a new rule of law being that schools universities subject to title nine could not use the context court's exemption as an excuse to discriminate and in that case also part of addressing your question is in the works or case there was strong  of media attention so once she made the team and she was the first female to ever make the football team there was extensive media coverage and she was asked to be interviewed by the school's information director and so in this case there's no such publicity or significance or new rule of law established nothing to guide future conduct the only parties that have an interest in the finding of the jury here are the parties themselves there was no publicity around this incident in the local area is that what you're saying i do not know of any personally and there's none that i'm aware of in the record i'm not saying that people in cambridge didn't know about it or hear about it but it's not similar to the type of extensive media attention that was present in the mercer case and i think the reason that this court felt that miss mercer was the unusual nominal damages case have to knock and announce before entering these officers testified that they did not going to announce the jury in some manner which we already discussed believe that they failed to properly not going announce and so it's not even close to the situation in mercer where there's a significant legal issue there's a public purpose that's going to provide guidance for the future conduct of universities this record talked a lot about deterren e is deterrence something we look at under these factors no because in this case it only matter to the parties what the jury's verdict was there's no reason it would provide deterrence because the law is already established police officers already know that when they're executing a search warrant they have to knock and announce unless the judge has given them permission not to do so it was already a rule of law that was established and whether the rule of law is to stab loops and whether a judgment may have a deterrent effect yes clearly established but i thought the supreme court in that case the name was going to escape me and i apologize but when they held that there is no exclusionary rule remedy for knock and announce violations and that's because judgments knock and announce cases in civil cases will be sufficient to deter so i mean i think we do think about judgments as having a deterrent effect even if the rule is clear no with well we don't know what the jury's verdict was based on he  i actually i'm not trying to i totally understand what you're saying everything you're saying makes sense to me but except for the idea that judgments have no deterrent effect work a rule of law is clearly established and i think the supreme court assumed the opposite in this case where they said you don't have to worry about the exclusionary remedy because civil cases judgments in civil cases will have the necessary deterrent effect the rule is clearly established the supreme court thinks the judgments are going to have a deterrent effect and i agree that well i think that in this particular case attorneys fees are so subject to the three o'connor factors as explained in mercer so deterrence isn't the only question and i don't think anyone's deterred by this verdict other than those officers and talking about it my point is simply that is it is simply that the deterrent would be the verdict or deterrence might arguably be the whatever the verdict was rather than the attorney's fees correct i mean yes because the attorney's fees are not there to to punish the parties that's not they're not supposed to be a windfall t i think the in far v harvey they made that very clear and so in this case you have to look at those three factors and you just every single factor mil against any award of an attorney for me in this case so because there's just the relief sought was definitely not obtained at all and there's not a significant legal issue there was a factual finding by the jury that no one's sure what it meant leading to a determination of liability however there's failure to prove an essential element of the claim and under control in case law that means no attorney's fees should be awarded and so although the district court awarded an amount that's not extremely high the point is that there should have been no award at all i do my time is and if there's no questions off thank you thank you mr roberts for for all you want to apologize for being tardy this morning were you thinking it was perhaps nine thirty i was so i apologize not a good excuse i wanted to just to merely pick up on a point that was just raised and that is really yes the judgment would serve as a deterrent however you're not going to get judgments if you don't have attorneys willing to take on these cases and if you're not going to provide attorney's fees as an incentive for the attorneys to take the case you're not going to get these kind of judgments that was precisely the point made in the case that judge harris was referring to the hudson case in which in that case they held that you know we're not going to apply the exclusionary rule to this kind of a violation and an important rationale for that decision was because look you know there's going to be plenty of deterrence because lawyers will take on these cases and so that's why  factors i won't concede under the first factor that the degree of success obviously is limited because we did not recover the compensatory damages however i think it's important to draw a contrast with the for our case because in this particular case we get a nominal damage award against all four officers who were sued here unlike karrar the verdict was somewhat ambiguous as to what claims he actually recovered on that's remarked upon by judge justice o'connor however in this case it's quite clear we prove that four officers all four defendants violated the the scenes constitutional rights now turning to the other two issues the significance of the legal issue here i think is clearly important and that's all we need to show we don't need to show that it has to be novel on my point it puts a lot of emphasis on the fact that it must be novel ordinary well people get damages all the time knock and announce is not new i mean it's been around for a long time and it's hard to see how this this verdict brings in anything that's noteworthy to that area law and i think i don't think it has to be so extra what we're given here is three factors to work with and the judge below obviously found that were determined that the plane was entitled entitled to attorney's fees here so we're dealing with the judge's decision below that in fact it did merit award of attorney's fees so we were view that for abus discretion we're looking at the factors on and i would just have to agree to disagree with you because i think the right involved here is an important one we're talking about right sure different from  damages we just think this is the right thing to do so this is the only place we can do it well all right i would only respectfully say that pages one thirteen one fourteen of the record this court when it decided to make the award of nominal damages for the violation emphasize that part emphasized the fact that there was no not going to announce it's clear as crystal what the court's determination is in that regard why it affirmed that and infirmed it on the basis that the evidence supported a verdict that in fact there was no knock and announce that's clear in this court's decision affirming the district court obviously they are i mean but as part of the read the discourse rationale for a war of novel damages so but be that as it may be the right whether we're talking about  to wait long enough after they knocked or for our failure to knock all together it's an important legal issue now also is is is your position that in the end that there should be people should be entitled to tourney season every not going announce violation no i am not contending that i'm not contending that i'm only dealing with this particular case i guess i'm just asking the same questions g g how is this case different well i find it i just fin that a person died in this particular case the facts are kind of unique i think we're not dealing with a situation where there was a just a naked violation we're dealing with a situation was hotly contested at the trial  whether or not this violation caused a man's death generally the jury certainly thought so it actually actually found no excessive force but that doesn't mean limb so it isn't a it is an important constitutional right from that standpoint there are other constitutional rights that are not necessarily protecting life and limb this certainly is one and then finally the public purpose to be served i believe clearly this vindicates an important constitutional right but it also serves the important purpose of deterring this kind of violation in the future judgment the judgment itself and right and i would just be repeating myself what i said earlier why that is important to have this kind of a judgment as a deterrent so that attorneys can attorneys will take these kind of cases on so in any case even if even if this was a case in which the court was persuaded there was no this is not an unusual case still the discretion of the court if it was merely a technical or more pyrrhic victory is that it could award no fees or low fees or low fees that's what the discretion of the court is and that kind of a case that's the line i put that in my brief as quoted from farrar no fees or fees and this is a in my view a low fee now i can also address with respect to the cross appeal that we've taken and if in fact we've crossed the threshold and meet the  the the test of the mercer test that the district court did not abuse is discretion by not doing the work of calculating a reasonable fee we don't know under well i believe that if i believed the work was related the work on the excessive force case was clearly related to the work those services to on the excessive force case were clearly related to the to the work necessary to prove the not going to announce violation they were part and parcel of the same thing there was no really extra work associated with that this is a hard fought difficult case and to prove the not going to announce violation took a lot of effort and work all related to the work that was necessary to prove excessive force it was all part and parcel of the same thing i can't even a vision how the work would have been less if i had only with respect to the issue you have deterrence that is brought up by judge harris i wanted to point to for r v hobby five o six us one of three page one twenty two where that is addressed and as you know mr farrar was seeking seventeen million dollars in compensatory damages and the case is similar because of all the efforts and appeals he went through in order to obtain nothing and so the case is similar to our case and at page one twenty two of the court's opinion they talk about section one thousand nine hundred eight they state that it is quote not a real effect for lawyers and  instead it is a tool that ensures the vindication of important rights and then they talk about four hours case in particular saying yet one searches these facts in vain for the public purpose this litigation might have served it's justice o'connor right i think this is doesn't matter because i thought then she went on to say but there's no we don't really know what they meant by deterrence and this isn't her that's right but she does not say that would be you said that the district court did not identify the kind of lawless conduct that might be prevented nor is the conduct to be deterred apparent from those verdict even which even petitioners acknowledges regrettably to secure the district or did very clearly identify the conduct he thought might be deterred but that was judgment is opinion it's not what the court held that the jury found exactly what the jury found with its verdict yes so i thought judgement said we can deter knock and announce violations and the jury did indeed find a knock and announce violation it just doesn't seem obscure in the same way it was and for art it is and it is obscure because we don't even know the basis for their verdict we know there was a violation and now matzah saying this will help to deter future violations i just think that i'm not really arguing the point so much as i'm arguing that it doesn't quite line up with the language you read because i just don't think there's any good security here it may still not work but i don't think that that passage is really making the point you think it is ok well i was i was trying to address your from your previous question about that as it goes to the public purpose of the litigation but taking us back to mercer and those three factors i mean i mean i don't want to just keep repeating what i said but i mean factors two and three here simply aren't met by this verdict it's it's a verdict that is a in a sense we know th technical violation we're not sure on what basis there's no reason to believe that the jury thought the officers did not knock it all at the front door or the door of mr cornish record things that's what happened right while there are that testimony about how they had knocked down the outside door and then it turned out there was no physical damage to the outside door i mean there's some reason to think the jury was not entirely on board the district court definitely has its own opinions and i know that your honor agrees with them and in your opinion that was published in our previous appeal but i think here the district court said in the case before us on the record below i don't dispute that he said that i think that it's not important here because here we have a verdict that matters only to the parties that were involved it's a factual decision by the jury there's no big statement made by this case it's not even close to what happened in mercer it's not even close to being the unusual case in which a fee is warranted so there should have been no fee at all under the usual role were nominal damages are tainted because you failed to prove an essential element of your case that's exactly what former r v hobby says and respectfully i would say this court has to follow that and so it's an abuse of discretion for the district court here to not follow that law and go ahead and just award twenty five thousand dollars in attorney's fees because he thinks it could be a deterrent if you look at the significant of significance of the legal issue and the public purpose served as mercer in trucks then you just don't have a situation here where there's an unusual case that warrants a fear ward and so he did it because the district court sum of twenty five thousand dollars saying first that he thought it would preserve the rule of law and then later saying it would be a deterrent and so i think you know it just takes me back to what i said before which is that this is a verdict that's factual in nature and it matters only to the parties that were involved i don't think is just not making some big statement that would guide future conduct like you have in the mercer case i mean there it's a matter of first impression  states a new rule of law and guide to the future conduct of other universities and so it's completely dissimilar this case from the mercer case i see i'm out of time thank you thank you