the court jeffrey raskin on behalf of the santa maria defendants unless the court has a different way of dealing with it i'd like to spend some time addressing our arguments on our appeal as well as responses to the cross appeal is that ok since the court last saw this case the evidence and the brothers theory has drastically changed there's no longer any dispute  a dispute of fact as to whether any such investigation occurred at all the sheriff's office submitted declarations saying that nobody called regarding javier jr whatsoever now that story has changed and plaintiffs have completely adopted that as their theory that in fact the sheriff's office was called and that the issue stems from lehrer correctly asking the necessary follow up questions the follow up questions he was supposed to ask with regard to mr franklin but failing to ask those same questions with regard to  fundamental difference is enough that makes the situation so that it cannot support liability with respect to to nor there's no evidence regarding an intentional omission that there's not evidence that he acted with a design to mislead he tasked lera with determining whether or not mr bravo was in custody lera provided a report and and that report was relied on with what to do council with what he did once he was told by mrs bravo that her son was in prison and showed him a letter from him recent vintage confirming that fact  he instructed the deputies to continue the search he did do that that certainly goes to liability which we are not challenging regarding the decision to continue the search but it doesn't show an intent to mislead a judge by omitting this information he has the information that he had provided by an experienced officer using a technique and investigation technique that is being used thousands of times that has report that that custody status was investigated with regard to all of these targets that mr franklin was in a state prison and that mr bravo and the others were not in custody sentenced some seven months prior to that to use two years correct and undisputed evidence at trial however is that that does not necessarily mean that he is still in custody and that is why a custody investigation was done that cost the investigation came back to june or saying that's what you mean that's why it was done because they knew he was sentenced to two years and he might not be still serving they needed to determine custody status but that's not why it was done you said that it was he'd been sentenced to two years but sometimes you don't serve two years and that's why we didn't investigate well that's not why you did the that's what he said you didn't notice the jury didn't have to believe that however no the jury didn't have to believe that the question is so what that would tell it would tell us is that officer to nor knew that seven months prior mr bravo was serving a sentence not necessarily was he currently in custody that information they knew that seven months before he had been sentenced to two years correct and they did not know whether in fact he was still in custody that was the question that was being didn't know whether you know they they did not provide anything about cut to nor did not write anything about custody and he did not write anything about custody because he was informed by an officer experienced detective would look at a rap sheet and see that the person you know been convicted and sentenced to two years in prison the person with your juniors record would be walking the streets waiting for a report i don't have an answer to that but i do know that the question here is whether it was reckless disregard of the truth and it's not reckless disregard of the truth to have an experienced officer conduct a custody investigation to do so using a technique that is one hundred percent has proven that's one hundred percent of the time and in which it appears from the report that it was a done correctly it correctly found that franklin was in the state prison there is no reason to disbelieve that to extend to say that it is a reckless for a supervising officer to not doubt when it whenever they receive a report that appears to have conducted the investigation in the correct way in terms of turning to the just be sure one thing i know you're talking about to nora but with respect to ralston one level above my understanding is the he testified that he was aware that the department had a policy of verifying if you wanted to verify state incarceration it would contact state authorities he also testified he knew that the county didn't have that information but that was the approach that the city took which was to contact the county which you knew did not have information about state incarceration is that your recollection as well it's not quite correct your honor th undisputed testimony is that the county had information regarding whether someone had been transferred to state prison they could not tell us whether as of today they remained in state prison or whether they were released that is the same approach that was used with regard to franklin the county was called the jail confirmed he's not here the next question has he been has he been transferred or answer yes he was transferred to state prison the next step was and that's the established practice the next is to ask the series of questions in the next next approach is to then call the state prison in term and which is exactly what happened show in this case that the second question you just indicated was asked has there been a transfer i'm sorry i missed the beginning of ok if i understood you correctly you said that ralston and the others called it was aware there was a call to the county asked whether he was there they were told no the second question that you just talked about was has he been transferred to the record show that that question was a problem is undisputed that that is the practice undisputed that it was asked before guard to franklin ok there is a dispute as to whether or not larry in fact asked that question with risk with regard to facts in the record exactly the opposite of what you're arguing not without any evidence they're the only evidence regarding ralston just imagine some experience jurors inside the jury room saying they  knew that he had been transferred from from county or did they think he was going to the white house to get a congressional medal of honor he was going to prison no i'm sorry  as i understood the question and the evidence is that there was a dispute as to whether larry in fact asked this follow up was he transferred according to the county he this question wasn't asked and so they never provided that information and the report that goes back to ten or is franklin has been transferred and is in state prison bravo is not in custody these others are not that's what triggers the next step that we're supposed to be asking was he transferred the next step of the practice the practice is to ask for that transfer question and if the answer is yes then to follow up with the state to determine not follow up because they did not receive any information that they were transferred either because the question wasn't asked or was answered in a correct with one of them correct with franklin they told him it was transferred the next step later i did do it undisputed he called the state determined that he in fact was in state prison and that's what was reported down ralston has no idea as to what was asked or not asked with regard to this nor a record they see a report in which it appears that blair asked the right questions he must have that's how we came to the correct answer with regard to franklin counsel can i change the focus just for a minute because  it's an important part of the case and that is that the judge clearly considered the settlement by santa barbara when determining whether this was  defendants should be subtracted from the attorney fees that are recoverable from a non settling defendant i don't know that i have a case but i can tell you that it seems an extraordinary principle that success against one defendant can be used as a measure of success against the other defendant is a different issue well go ahead and answer and i mean my time is running short and i'm with i save some time for rebuttal but in this case we also amount of money that was received in settlement in santa barbara case and and when calculating attorney fees subtracted from the fees that would otherwise be payable by the city of santa maria the amount that was paid by santa barbara my question to you is as to the subtraction of the fees is there any case that you are aware of that requires that to indeed that you consider that fees were paid in a case of that nature so i'm understanding the subtraction we're not talking about the offset your honor right we are talking about whether it is appropriate to consider success and there's another defendant in calculating attorney's fees and as i had answered before i don't i'm not aware of a case it does seem an extraordinary principle and we also have in this case it appears that santa barbara overpaid for whatever their reason for overpaying the damages that they caused were from their entry that is right that is the heart attack like symptoms that mr bravo experienced driver just thinking that he was being attacked by robbers that his son was killed and as the district court made clear here who heard the evidence the jury evaluated that and that is why the jury awarded five thousand dollars to mr bravo and not to the others because he experienced this kind of damage from the entry the jury decided that those damages were worth just five thousand dollars whatever santa barbara's reasons for trying to get out of the case was concerned of higher liability it wanted to avoid attorney's fees it was willing to pay one hundred fifty thousand dollars that's an overpayment liability fining intentional reface omission the superseding cause instruction and the issue about fees this case goes before the jury basically in the same evidence that came up in two thousand and eleven as in the summary judgment we know from the courts two thousand and eleven decision the evidence was sufficient to uphold the verdict of intentional reckless omission and what we now have is a verdict saying that the omission was intentional two thousand and five verified by fingerprints he is in fact in corcoran state prison then i think judge smith picks up on an important point to that once to nori is told he's in state prison he directs the search continues to nori did not care about junior's custody status that's what that fact indicate and more ask you just because because we are short on time  anything well i guess you would say that the fact that he had been convicted is enough to take you to the next step is to why he would be concerned about what had been asked right sure i mean i mean excuse me lieutenant roston knows what this department practice says knows that gosh they're going to be checking with county jail to determine state custody status that's a problem which of course he later acknowledged it was a problem and they should have checked with the state prison authorities so he has knowledge that to practice what the practice is and it was followed in this case did nothing you taking though that person is forseeable and because forseeable it's deliberate indifference to tell them if someone is in state custody and ice and ice move you forward to the attorney if you think at least personally that's the main thing i'm struggling with here you have a case where in the santa maria portion of it you've got a five thousand dollars award to rubbles sr you have an amended judgment giving a one dollar award  is ok ok if you don't consider the santa barbara money you've got a very high ratio when you look at the million dollar award given our case law and i was involved in one of the  i'm i'm really concerned so i've for a minute let's let's put aside the santa barbara thing how can we justify even on the important point that we want to encourage counsel to take these kinds of cases to help correct malfunctions and excessive actions by police departments like i get all of that but five thousand to a million is a really big number sure if if we don't consider the santa barbara number for a moment i case you rely upon to help me get there to say ok judge you know this is really an important case what happened here was just terrible let's go for it if you're looking for a case that says the million dollars is good  think what you have to look at here is how did we end up with a million dollar feel ward we're not here because santa maria took take no prisoner no hall holds barred visitation they refused to make any kind of reasonable settlement offer ok i mean the evidence is there and the record and from plaintiff's stamp point they had no opposing party defendant perhaps it's because they are funded by taxpayers that do not take economics into consideration we support our clients the police officers what choice do you have  excuse the district court from engaging in an analysis comparing the amount of these thoughts with the results in terms of the damage you know you always have to make that analysis of course where is that where would i find that in the right well or the district or engaged and then there was well it's in the discussion on the fiord or the order from i think march of tw damages if i know this is not a perhaps as direct as an answer as as you are looking for judge talk and answer at all i'd like to know where it is in the record that the district court in making the  compare the amount of to the amount of damages awarded and isn't with the five thousand and two dollars as packing under the isn't that what fire are the supreme court case requires for far is discussing a nominal damages award case where there was no actual injury of any type whatsoever it was strictly a procedural victory number one that is not this case here there was an actual constitutional injury causing a real injury the forced nighttime entry into a home number one and one plainti recovered damage s five thousand admittedly modest and which we also say was based only on the santa maria search not for the initial forced nighttime entry so human being the same if the jury awarded one dollar to each of the points the argument would yes essentially been the same but again i'm coming to the point about that superseding cause instruction and the significance of place here you read the verdict form and you look at the jury instructions it's plain i would submit what happened here the jury decided that the chief cause of injury in this case was the initial forced nighttime entry by the santa barbara city swat team of course blowing the door open breaking the glass the flash bangs the men dressed in black pointing guns etc obviously a frightening experience i would submit for anybody but that of course was santa barbara city and the jury had before it the superseding cause instruction which permits santa maria to say those injuries were all the fault of santa barbara city we cannot be held liable for it and that's the jury except i said met when you look at the evidence right the continued search by santa maria obviously not anywhere as frightening as that initial break in and javier seniors distress that occurred during the continued search so we really have to back up to that superseding cause construction was there a factual basis for  assume even that there is to get back to my colleagues and my apparent dilemma in this thing far seems to really require us to focus on what was awarded they don't even talk about superseding instruction and i realize you said that was just a nominal issue the reality is and in this case your chances of getting a million dollar verdict are i mean attorney fees is much much higher if you add in santa barbara settlement true right and there's really question i'm in a better position now the district judge went to some effort to try to explain why he thought that was appropriate is there any case that you know that authorizes him to do what quarter versus brown this court's decision in one thousand nine hundred four now that had to deal with an offset of attorney fees for a settling defendant and what the ones are could help is that yes you take you factor in the settling defendant's payment of attorney c well the argument the position here is you take into account not just the attorney's fees that the seven defendant paid but also what you got the plaintiff got from the settling defendant right of those attorney fees were for a reason again santa barbara city it was because of their no knock breakout which our theory all along from day one has been santa maria is responsible for that no not break in and of course make sure they called in santa barbara even they called in santa barbara now i want to point something out about what the courts the district court said at page i think it was page eighteen of the order in rejecting our claim that there was no factual basis for the superseding cause instruction the district court said the warrant affidavit did not ask for a swat those award of new rules that will stop police practices and there's only a nominal or minimal amount the question is to what extent can you give  attorney's fees which were clearly earned in order to achieve those public benefits to what extent do you not receive them because there's a small financial awarded to your client and as the district court said although only one of the plaintiffs tainted damage amount for five thousand dollars they have changed a verdict and then goes on to say about the importance of the public benefits now he obviously was aware and said that there was only a small financial war he then went on to say that you had an excellent result nevertheless because of the changes you're going to force in police practices you know we've got all kinds of this is another one of things where there are factors i have to look at factors you have to look at the public award you have to look at the public benefit you know you can read these things differently and city of riverside it seems to me made it very clear that even if there were a small financial cement that it does are pointed as i go back to one how did we get here we got here because of the position of the city took it would not engage in any kind of meaningful settlement negotiations and we planned has had no choice however to simply take the case to trial first take it through the first appeal and then take it to trial this is not a for our case because for  very simple classic kind of nominal damages case right procedural victory no change in department policy nothing that's going to send any kind of a signal to police agencies to adopt more appropriate behavior this case has all that i'm not a time if there's other questions i'm happy to answer them and i would submit thank you thank  you to address the issues very quickly in terms of ralston i think you heard what you needed to hurt here the additional evidence that the judge didn't have was that ralston knew what the practice was and knew that it had been follow is the information he had that it had been followed and that understated the practice is not just a call up and ask one question is he in the jail the bit of a two step practice in which you ask a follow up question the question that was asked with regard to franklin that is what ralston had before him he had no reason to believe anything else that is why some cannot be liable in terms of the fee issue counsel says that this is what had to happen he had to keep asking for keep pushing and pushing and spending more and more because no reasonable settlement offer was on the table this is a different analysis this has to do with duplicative efforts was it necessary mcinnis tells us how this council regardless of your perspective on whether that occurred municipality does a really full on no settlement tough position that just grinds out everything are we to take that into account when we review the amount of fees awarded by a district court i think that is to answer first this this goes to was it necessary but not the separate for raw or hensley analysis about whether it was justified whether the actual amount awarded justifies it and the pushing for big damages were offering significant amounts while we know that the well about what they received of course we're going to be defending justice have we as what they are seeking if i could just briefly address the dry and hard question regarding the issue on on on the important public policy question yes the the court that the district court did in fact point to public policies but it's also true that the pub the policy issues that he's talking about are not any kind of widespread issue in case after case that's the significant issue that this is changing a beleaguered shutting down a beleaguered police department curbing widespread police abuses widespread animus towards the latino community considering how important this public benefit is how widespread it is and that isn't at this court reviews in this case the policy says yes you did you think that what he found to be important changes were not that maybe it would be entitled to a hundred and maybe to nothing the jury decided five thousand so let's assume those are his damages if it takes a million dollars worth of work and nobody denies settle when they are small dollar amounts and it doesn't require this secondly yes the supreme court has told us that the critical factor and this circuit has told us that the most critical factor is what was actually received with this additional of if there is a substantial widespread public benefit the bat can add to it but the amount of attorney fees don't just have to be what was actually spent to obtain this it has to be enough it has to be justified by the amount of the recovery where the amount is a mere five thousand dollars shockingly low compared to what they had sought no punitive damages they they're telling you it's modest they're seeking a new trial on damages but to kill it because they believe that they got far far less than what they had hoped and the public benefits that identify are the change of a practice that is undisputed has never caused any problem ever and here apparently caused a problem except in this case but it is not a we saw yes never before this is not a widespread discretion and it is difficult to start arguing with the particular amount as it starts getting a lot more but two hundred eighty three times is and one point two million on a five thousand dollar claim we have never seen from our research any great any disparity even hope to the amount you have been in just the amount of our spam through the hourly rate we're not challenging either of those were challenging only on this fundamental reason for civil rights if you change the power but under your theory if you don't care either damages in doing it you can pay the light no that's not our theory are the areas i appreciate  entitled to no or very low fees and there certainly is cynics finished know that there certainly is an exception in the case of obtaining a very significant public benefit where change is a widespread issue started here to determine how important the public benefit yes and it was in a case where you've changed a practice that has never before had any problem this is not a widespread issue and to change that practice is not a one point two million dollar kind of victory it isn't we've seen plenty of cases where it is maybe adequate for a big public policy a much six where the judge just said serving the public interest five indicating important constitutional rights is a factor we should consider very heavily and you got far which is one thousand nine hundred two which is of  course six years later says the most critical factor in determining the reasonable us of a fee award is the degree of success attained it is an abuse of discretion for the district court to award attorney's fees without considering the relationship between the folks extent of success and the amount of the fee or how do you square far and riverside i think for our tells us as have the cases since then that that the amount of the relief you actually obtain for your client is the most critical factor it is the number one other factors do exist they are of a lesser value and you need to consider both of those minimal success achieved has to be considered there may be some additional attorney's fees that you get beyond just that if there is some public benefit but it has to be a very widespread public benefit and has to be you need to then have a feel ward that is commensurate with that extent of that benefit the city of riverside uses the word widespread i don't know if city of riverside is or argument no there are many many cases by the circuit