Charles Barnard, et al v. Greg Theobald, et al

Filing

FILED OPINION (MICHAEL DALY HAWKINS, MILAN D. SMITH, JR. and JAMES G. CARR) All pending motions for judicial notice are denied as moot. Costs on appeal to plaintiff. Fed. R. App. P. 39(a)(4). AFFIRMED IN PART, REVERSED IN PART, VACATED, AND REMANDED. Judge: JGC Authoring. FILED AND ENTERED JUDGMENT. [8686560] [11-16625, 11-16655]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CHARLES BARNARD ; RITA
BARNARD ,
Plaintiffs-Appellees,
v.
GREG THEOBALD , #6527; GARY
CLARK, #6240; STEVEN
RADMANOVICH , # 6420, individually
and as Police Officers employed by
the Las Vegas Metropolitan Police
Department,
Defendants-Appellants,
and
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT , A political
subdivision of the State of Nevada,
Defendant.

No. 11-16625
D.C. No.
2:03-cv-01524RCJ-LRL

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BARNARD V . THEOBALD

CHARLES BARNARD ; RITA
BARNARD ,
Plaintiffs-Appellants,
v.
GREG THEOBALD , #6527; GARY
CLARK, #6240; STEVEN
RADMANOVICH , #6420, individually
and as Police Officers employed by
the Las Vegas Metropolitan Police
Department,
Defendants-Appellees,

No. 11-16655
D.C. No.
2:03-cv-01524RCJ-LRL

OPINION

and
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT , A political
subdivision of the State of Nevada,
Defendant.

Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted
February 15, 2013—San Francisco, California
Filed July 1, 2013

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Before: Michael Daly Hawkins and Milan D. Smith, Jr.,
Circuit Judges, and James G. Carr, Senior District Judge.*
Opinion by Judge James G. Carr

SUMMARY**

Civil Rights
The panel affirmed the district court’s entry of judgment
on a jury verdict in an action alleging that police officers used
excessive force, but vacated the district court’s decision
reducing the attorneys’ fee award and denying plaintiffs preand post-judgment interest.
The panel held that the district court properly denied the
officers’ motions for judgment as a matter of law because the
jury verdict was supported by substantial evidence, and the
officers were not entitled to qualified immunity. The panel
noted that the jury had found, by special interrogatory, that
the officers used an unreasonable amount of force and the
officers failed to meet the relevant burden necessary to
overturn the finding.
The panel held that the district court abused its discretion
where it reduced the amount of the fees award without

*

The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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explaining why a 40 percent reduction would be an
appropriate remedy. The panel further held that the district
court abused its discretion by denying post-judgment interest
because such an award is mandatory, and that the court’s
stated reasons for denying prejudgment interest appeared to
be questionable. The panel vacated those aspects of the
district court’s orders and remanded for further proceedings.

COUNSEL
Walter R. Cannon, Peter M. Angulo, and Thomas D. Dillard,
Jr. (argued), Olson, Cannon, Gormley & Desruisseaux, Las
Vegas, Nevada, for Defendants-Appellants–Cross-Appellees.
Paola M. Armeni (argued) and Margaret W. Lambrose,
Gordon Silver, Las Vegas, Nevada, for PlaintiffsAppellees–Cross-Appellants.

OPINION
CARR, Senior District Judge:
Charles Barnard (Charles) brought suit against Las Vegas
Metropolitan Police Officers Greg Theobald, Gary Clark, and
Steven Radmanovich (collectively, the Officers) for their
alleged use of excessive force in violation of the Fourth
Amendment. A jury found that the Officers’ use of force was
constitutionally excessive, and awarded Charles over $2
million in compensatory damages. In post-trial motions, the
Officers argued that the jury verdict could not stand because
they are entitled to qualified immunity. The Officers also
argued they are entitled to a new trial because of a plethora of

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perceived prejudicial errors committed by the trial court.1
The district court denied the Officers’ motions. Because the
Officers are not entitled to qualified immunity, we affirm the
district court’s entry of judgment on the jury’s verdict.
However, we agree with Charles’s arguments—raised in his
cross-appeal—that the district court abused its discretion by
failing to adequately explain its decision to reduce the amount
of attorney fees awarded to Charles, and in denying Charles
pre-and post-judgment interest. Consequently, we reverse
those portions of the district court’s decision, and remand for
further proceedings consistent with this opinion.
FACTUAL BACKGROUND2
Around 11:30 p.m. on December 8, 2001, the Officers
arrived at the home of Charles and Rita Barnard (Rita) to
execute an arrest warrant. The warrant called for the arrest of
David Barnard (David), Charles’s brother, who was staying
with Charles and Rita.
Upon arrival at the Barnard residence, the Officers
knocked on the door, announced themselves as police
officers, and demanded entry. Charles opened the door and
came out on the landing. The Officers immediately
confronted him. All of the Officers had their weapons drawn,
and Officer Clark had his weapon pointed at Charles. At

1

W e resolve— and reject— the Officers’ trial error claims in the
memorandum disposition filed concurrently with this opinion.
2

Given the jury verdict for Charles, we present the facts “in a light most
favorable to him, resolving conflicts in his favor and giving him the
benefit of reasonable inferences.” Murphy v. F.D.I.C., 38 F.3d 1490, 1495
(9th Cir. 1994).

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trial, Charles testified that the Officers appeared agitated, and
that they were “shaking, they’re screaming, yelling at me,
‘Hey, motherfucker, put your hands up, put your fucking
hands up.’” Charles put up his hands.
The Officers asked Charles to identify himself. Charles
told the Officers that his driver’s license was in his bedroom,
and asked the Officers to explain the purpose of their visit.
The Officers explained that they had a warrant to arrest
David. Charles told the Officers that David is his brother,
and that he was asleep inside the house. The Officers ordered
Charles to turn around and put his “fucking hands on the
wall.” Again, Charles complied.
Standing behind Charles, Officer Theobald seized
Charles’s right arm and handcuffed his right wrist. Before
Theobald could handcuff Charles’s other arm, however,
Theobald tripped on a flower pot that was on the Barnards’
landing. Theobald fell backward, still holding onto the
handcuffs that were attached to Charles’s right wrist. Officer
Radmanovich, who had been standing to Charles’s left,
grabbed for Charles’s left (free) arm as Charles was being
pulled down by Theobald, but Radmamovich tripped over
one of Charles’s legs, and all three men came crashing down;
Radmanovich on top of Charles, and Charles on top of
Theobald.
Officer Clark then joined the fracas. Clark came over to
Charles, who was still lying on top of Theobald, and put
Charles in a chokehold. Clark then tried to lift Charles up by
his neck. Theobald, however, still had hold of the handcuff
around Charles’s right wrist. The other officers yelled at
Theobald to release the cuff, which he did. Still holding
Charles by the neck, Officer Clark then lifted Charles even

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higher off the ground and spun Charles around so that he was
on his hands and knees with Officer Clark straddling his
back. Charles testified that at some point during this time, his
“legs went numb.”
Clark kept Charles in a chokehold as he rode Charles to
the floor. While Clark was sitting on Charles’s back
restraining him in a chokehold, Officers Theobald and
Radmanovich ordered Charles to give them his
“motherfucking” arms. With Clark on top of him, however,
Charles could not comply with the Officers’ order. Officer
Theobald then instructed Clark to use his chemical agent (i.e.,
pepper spray) to gain Charles’s compliance. While still
sitting on Charles’s back, Officer Clark released the
chokehold and sprayed pepper spray into Charles’s face.
Clark then dropped his spray canister next to Charles. One of
the Officers immediately picked up the can and peppersprayed Charles for a second time.
Soon thereafter, Officer Clark got off of Charles’s back,
and the other Officers handcuffed Charles’s arms behind him.
Both Officers Radmanovich and Theobald then dug one of
their knees into Charles’s back—Officer Radmanovich’s knee
pressed near Charles’s neck and shoulders, and Officer
Theobald’s pressed into Charles’s lower back.
At this point, Rita came to the front door to investigate the
disturbance. Officer Clark ordered her to “put your fucking
hands up, [and] get on the fucking wall.” Clark then asked
Rita to identify herself. Rita identified herself as Charles’s
wife.
Finally, David came to the front of the house. Officer
Radmanovich got off of Charles in order to secure David.

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Meanwhile, Officer Theobald slid his knee up Charles’s back
towards his neck. For the next few minutes, as Officers Clark
and Radmanovich secured the scene, Theobald kept his knee
pressed firmly into the back of Charles’s neck and shoulders.3
Charles repeatedly asked Theobald to get off of his neck, and
told Theobald that he was in considerable pain. But Theobald
refused to relent. Eventually, after the other Officers had
secured David in the back of a police car, Theobald released
his knee from the back of Charles’s neck. Charles was taken
to Clark County Detention Center, where he was held for
three days on charges of battery on a police officer, resisting
an officer, and obstructing a public officer.4
The same morning Charles was released from jail, he
sought medical treatment at University Medical Center.
Charles complained to the attending physician of severe pain
in his hip, neck and shoulders. A week later, Charles returned
to the same doctor because his pain had still not subsided.
Charles was referred to a specialist, who further referred
Charles to physical therapy. But physical therapy was not
enough to alleviate Charles’s pain and other symptoms.
Ultimately, over the course of many years, Charles underwent
nine spinal surgeries in an effort to relieve the various
symptoms he claims were caused by his encounter with the

3
The Officers struggled to secure the scene because David, an ex-police
officer and United States Marine, apparently took umbrage at the Officers’
aggressive tactics in restraining him and his brother.

4

Charles was never convicted of any criminal offense related to the
December 8 incident.

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Officers. As of the time of trial, Charles’s symptoms had still
not subsided.5
PROCEDURAL BACKGROUND
Charles brought suit against the Las Vegas Metropolitan
Police Department (LVMPD) and the Officers on December
5, 2003. Charles alleged that the Officers arrested him
without probable cause, and used excessive force in making
his arrest. Charles further alleged that the LVMPD was
vicariously liable for the Officers’ actions.
In March 2007, then-United States District Judge Brian
Sandoval granted LVMPD’s and the Officers’ motions for
summary judgment and entered judgment in favor of the
defendants. A panel of our court affirmed in part, reversed in
part, and remanded. See Barnard v. Las Vegas Metro. Police
Dep’t., 310 F. App’x 990, 994 (9th Cir. 2009). Specifically,
we affirmed the district court’s grant of summary judgment
to the Officers on Charles’s false arrest claim after finding the
Officers were entitled to qualified immunity. Id. at 992. We
also affirmed the district court’s grant of summary judgment
to the LVMPD on the basis that municipal liability in § 1983
actions cannot be based on vicarious liability.6 Id. at 992–94.
However, we reversed the district court’s grant of summary
judgment to the Officers on Charles’s excessive force claim.
We explained that the Officers were not entitled to qualified
immunity because, “construing the evidence in the light most
favorable to the plaintiff” at “the time of the incident at issue

5

“Q: Chuck, as you sit here today, can you tell us how you feel as far as
painwise [sic]? A: It kills me. It’s constant.”
6

See generally Cameron v. Craig, 713 F.3d 1012, 1023 (9th Cir. 2013).

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here, a reasonable officer would have known it violated
clearly established law to use a choke hold on a non-resisting
arrestee who had surrendered, pepper-spray him, and apply
such knee pressure on his neck and back that it would cause
the collapse of five vertebrae in his cervical spine.” Id. at
993. We thus remanded Charles’s excessive force claim for
trial.
Trial began on January 24, 2011, and lasted seven days.
At the conclusion of the plaintiff’s case-in-chief, the Officers
moved for a directed verdict under Federal Rule of Civil
Procedure 50(a). The principal basis of the Officers’ motion
was that the amount of force used was “exceptionally
reasonable under the circumstances,” and, in any event, the
Officers could have reasonably believed that Charles was
resisting arrest.7 The district court denied the Officers’
motion in relevant part.
After the close of evidence and the receipt of jury
instructions, the district judge submitted the following special
interrogatories to the jury, and the jury returned the verdicts
indicated in brackets:
1) Did Charles Barnard forcibly resist when
the officer Defendants attempted to handcuff
him on December 8, 2001? [No.];

7

The Officers also moved for a direct verdict on the issue of punitive
damages. The district court agreed with the Officers that there was
insufficient evidence to show that the Officers acted with malice or
deliberate indifference towards Charles’s constitutional rights, and so
granted the Officers’ motion with respect to the (un)availability of
punitive damages. Charles does not appeal that ruling.

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2) If your answer to Question 1 above is
“No,” did the officer Defendants make a
reasonable mistake of fact that he was forcibly
resisting arrest? [Yes.];
3) Did the following Defendants violate
Charles Barnard’s Fourth Amendment rights
by using excessive force in seizing him in his
home on December 8, 2001? [Yes as to all
defendants.]; and
4) What amount of damages did the
defendants cause Charles Barnard to incur?
[$2,111,656.52].
After the verdict, the Officers filed renewed motions for
judgment as a matter of law pursuant to Federal Rule of Civil
Procedure 50(b). Once more, the Officers argued that they
were entitled to qualified immunity. The Officers also filed
a Rule 50(b) motion attacking the evidentiary sufficiency of
the jury verdict, and another motion—brought pursuant to
Federal Rule of Civil Procedure 59(a)—alleging that trial
errors warranted a new trial or, alternatively, remittitur. For
his part, Charles filed a motion for attorney fees pursuant to
42 U.S.C. § 1988.
On June 7, 2011, the district court denied the Officers’
motions for judgment as a matter of law. The district court
did, however, agree with the Officers that Charles’s pain and
suffering award was excessive, and directed that such
“damages should be reduced by $500,000 and that a just and
reasonable amount of damages for pain and suffering should
bring the verdict to $1,611,656.52.” Charles accepted the
remittitur.

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The district court also granted in part Charles’s motion for
attorney fees. Charles had requested an award of $315,505 in
attorney fees and $61,408.80 in costs. The district court
granted Charles the full amount of his costs, but reduced the
attorney fees award by 40 percent, to $189,303.
On August 8, 2011, the district court entered judgment in
favor of Charles. The judgment included the remittitur sum
of $1,611,656.52, and provided that prejudgment interest was
to be paid at the rate of 3.25% and post-judgment interest at
the rate of 4%. The Officers then filed a motion for
reconsideration, arguing that the award of both pre-and postjudgment interest was improper. The district court agreed
with the Officers regarding prejudgment interest. In one
paragraph of analysis, the district court explained that
prejudgment interest may not be appropriate when applied to
an award of non-economic damages. The court also reasoned
that prejudgment interest was inappropriate because it was
unclear which portion of Charles’s award, if any, was
intended to compensate him for future pain and suffering.
The implication of the district court’s order is that
prejudgment interest should be unavailable whenever a jury
returns a general verdict that does not distinguish between
past and future compensation. The district court’s order did
not address Charles’s entitlement to post-judgment interest.
Nevertheless, the district judge entered an amended judgment
that provided for neither pre- or post-judgment interest. Both
Charles and the Officers timely appealed.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s denial of a renewed motion for
judgment as a matter of law. Josephs v. Pac. Bell, 443 F.3d

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1050, 1062 (9th Cir. 2005). We must view the evidence in
the light most favorable to the nonmoving party, here
Charles, and draw all reasonable inferences in his favor. Id.;
see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 149–50 (2000). “The test applied is whether the
evidence permits only one reasonable conclusion, and that
conclusion is contrary to the jury’s verdict.” Josephs,
443 F.3d at 1062.
We review the district court’s decision to award attorney
fees, and its method of calculation, for abuse of discretion.
Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1059
(9th Cir. 2006). Similarly, a district court’s decision whether
to award pre- or post-judgment interest is reviewed for abuse
of discretion. Citicorp Real Estate, Inc. v. Smith, 155 F.3d
1097, 1107 (9th Cir. 1998).
DISCUSSION
I. Qualified Immunity
Qualified immunity “protects government 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 v.
Callahan, 555 U.S. 223, 231 (2009) (citation omitted).
“[T]he Supreme Court set forth a two-part test for qualified
immunity in excessive force cases. First, we examine
whether a Fourth Amendment violation occurred; second, we
look to see whether the officers violated clearly established
law.” Cameron v. Craig, 713 F.3d 1012, 1020 (9th Cir. 2013)
(quoting Santos v. Gates, 287 F.3d 846, 855 n.12 (9th Cir.
2002)).

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The Officers advance two theories to explain why they
are entitled to qualified immunity. First, they contend that
their use of force was objectively reasonable as a matter of
law, and thus no Fourth Amendment violation occurred.
Second, the Officers argue that they are entitled to qualified
immunity because the jury expressly found that the Officers
made a “reasonable mistake of fact that [Charles] was
forcibly resisting arrest.” Neither theory is availing.
We have already rejected the Officers’ first contention
that their conduct was objectively reasonable as a matter of
law. In reversing the district court’s grant of summary
judgment, we concluded “that the plaintiff tendered sufficient
evidence to demonstrate a triable issue of fact on his
excessive force claim against the individual officers.”
Barnard, 310 F. App’x. at 993. That is, we concluded that if
the jury believed Charles, the evidence likely to be presented
at trial could establish a constitutional violation because the
Officers’ conduct was not per se reasonable. We reject the
Officers’ invitation to revisit that decision.
Even more fundamentally, a jury has now expressly
decided that the Officers’ conduct was unreasonable in light
of the actual evidence Charles presented at trial. We have
held repeatedly that “[b]ecause questions of reasonableness
are not well-suited to precise legal determination, the
propriety of a particular use of force is generally an issue for
the jury.” Cameron, 713 F.3d at 1021 (quoting Chew v.
Gates, 27 F.3d 1432, 1440 (9th Cir. 1994)). Here, the jury
found—by special interrogatory—that all of the Officers in
this case used an unreasonable amount of force against
Charles.

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The Officers ask us to overturn this finding, but do not
even come close to meeting the relevant burden necessary for
us to do so. We review a jury verdict to determine whether
it is supported by substantial evidence, and we may overturn
a jury’s verdict in those rare cases where the evidence
“permits only a conclusion contrary to [that] verdict.”
McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000); see
also Hangarter v. Provident Life & Accident Ins. Co.,
373 F.3d 998, 1008 (9th Cir. 2004). But as noted above, we
already held at the summary judgment stage that Charles’s
evidence could sustain a jury verdict in his favor. Barnard,
310 F. App’x. at 993. Now that Charles has presented that
very same evidence to the jury, and the jury has accepted it,
we cannot properly hold that the evidence in the record
“permits only a conclusion contrary to the jury’s verdict.”
McLean, 222 F.3d at 1153.
The Officers’ alternative argument fares no better. At
bottom, the Officers claim that if Charles was actually
resisting, or if the Officers could have reasonably believed
that he was resisting, then the Officers are entitled to
qualified immunity as a matter of law. Completing the
Officers’ syllogism, the Officers must be entitled to qualified
immunity because the jury specifically found that “the officer
Defendants [made] a reasonable mistake of fact that [Charles]
was forcibly resisting arrest.”
The Officers are simply mistaken in their understanding
of the law. Resistance, or the reasonable perception of
resistance, does not entitle police officers to use any amount
of force to restrain a suspect. See LaLonde v. Cnty. of
Riverside, 204 F.3d 947, 959 (9th Cir. 2000) (“[I]f the extent
of the injury to [plaintiff’s] back is serious enough, a jury
could conclude that [the officer] used force in excess of what

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was reasonable, even if [plaintiff] had been resisting at the
time.”); see also Santos, 287 F.3d at 853 (“[E]ven where
some force is justified, the amount actually used may be
excessive.”). Rather, police officers who confront actual (or
perceived) resistance are only permitted to use an amount of
force that is reasonable to overcome that resistance.8 Here,
the jury concluded that the amount of force used by the
Officers was unreasonable, even in light of their mistaken
belief that Charles was resisting.9
II. Attorney Fees
42 U.S.C. § 1988 “provides that in federal civil rights
actions the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee
as part of the costs.” Hensley v. Eckerhart, 461 U.S. 424, 426
(1983) (internal quotation marks and citation omitted).
Congress passed § 1988 “to attract competent counsel to
prosecute civil rights cases.” Mendez v. Cnty. of San
Bernadino, 540 F.3d 1109, 1126 (9th Cir. 2008) (citation
omitted). Consequently, “a court’s discretion to deny fees
8
It is for this reason that Charles brought a claim for the Officers’
“excessive use of force” as opposed to merely the Officers’ “use of force.”

9

On appeal, the Officers have not challenged whether the right to be
free from their unreasonable actions was clearly established, that is,
whether the officers made a “reasonable mistake as to the legality of their
actions.” Saucier v. Katz, 533 U.S. 194, 206 (2001), overruled on other
grounds by Pearson, 555 U.S. at 236. Because “[t]his court ‘will not
ordinarily consider arguments that are not specifically and distinctly raised
and argued in appellant’s opening brief,” Padgett v. Wright, 587 F.3d 983,
985 n.2 (9th Cir. 2009) (per curiam) (quoting Int’l Union of Bricklayers
& Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc.,
752 F.2d 1401, 1404 (9th Cir. 1985)), we decline to consider such an
argument here.

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under § 1988 is very narrow and . . . fee awards should be the
rule rather than the exception.” Id. (quoting Herrington v.
Cnty. of Sonoma, 883 F.2d 739, 743 (9th Cir. 1989)) (internal
quotation marks omitted).
Charles submitted bills for $315,505 in attorney fees and
$61,408.80 in costs. The district court awarded Charles the
full amount of his costs, but reduced the attorney fees award
by 40 percent, to $189,303. The court explained the basis for
its reduction as follows:
In calculating the lodestar, the Court will
accept the rates proffered by movants but will
not accept all hours as reasonable. The case
was not particularly complicated, and
discovery had closed when movants took the
case. The litigation history of the case was
neatly laid out for the parties in the electronic
record. Movants had merely to review the
record as it stood before trial, and apart from
responding to a motion in limine, they needed
only prepare for trial itself. Over 600 attorney
hours and 200 paralegal/assistant hours in
preparation for a single-claim excessive force
trial after pretrial practice is complete is
excessive. The trial itself took roughly fifty
hours. The Court will therefore reduce the
claimed hours by 40% in calculating the
lodestar to be $189,303 and will not apply a
multiplier.
“We have long held that district courts must show their
work when calculating attorney’s fees.”
Padgett v.
Loventhall, 706 F.3d 1205, 1208 (9th Cir. 2013). Failure to

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thoroughly explain the basis for an attorney fees award is
problematic because without such an explanation, “it is
simply not possible for this court to review such an award in
a meaningful manner. Absent some indication of how the
district court’s discretion was exercised, this court has no way
of knowing whether that discretion was abused.” Id. (quoting
Chalmers v. City of L.A., 769 F.2d 1205, 1213 (9th Cir.
1986)).
Here, the district court found that the hours billed by
Charles’s attorneys were “excessive,” and reduced the
amount of the fees award by 40 percent. But while the
district judge explained why he thought the award was
excessive, he failed to explain why he thought that a 40
percent reduction would be an appropriate remedy.
Furthermore, while the district court considered the amount
of time it believed plaintiffs’ attorneys should have spent on
the case in light of the case’s complexity, it is not clear
whether the trial court adequately considered Charles’s
“degree of success,” which the Supreme Court has explained
is “the most critical factor” in determining an appropriate
amount of attorney fees. Hensley, 461 U.S. at 436.
Consequently, we must vacate the fees award and remand10
for a more complete explanation.11

10

On remand, we do not direct that the district court reach any particular
result in awarding Charles’s attorney fees. As we have explained,
however, the district court must adequately specify its reasons for
alighting on whatever figure it ultimately selects. Padgett, 706 F.3d at
1208–09. “It is worth repeating that since the district court is already
doing the relevant calculation, it is a small matter to abide by the
injunction of the arithmetic teacher: Show your work!” Id. at 1208
(internal quotation marks, citiation, and alterations omitted).
11

All pending motions for judicial notice are denied as moot.

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III.

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19

Judgment Interest

Although the district court initially entered a judgment
that provided for both pre- and post-judgment interest, its
amended judgment provides for no interest whatsoever. With
respect to post-judgment interest, this was a clear abuse of the
district court’s discretion: Under 28 U.S.C. § 1961, the award
of post-judgment interest on a district court judgment is
mandatory. See Air Separation Inc. v. Underwriters at
Lloyd’s of London, 45 F.3d 288, 289–90 (9th Cir. 1995)
(holding that post-judgment interest is mandatory, and noting
that the“[f]ailure to award post[-]judgment interest would
create an incentive for defendants to exploit the time value of
money by frivolously appealing or otherwise delaying
payment.”). Consequently, we remand to the district court
with instructions to award Charles appropriate post-judgment
interest.
On remand, the district court may also wish to reconsider
its decision to deny Charles prejudgment interest. For while
the ultimate decision whether to award prejudgment interest
lies “within the court’s sound discretion, to be answered by
balancing the equities,” Wessel v. Buhler, 437 F.2d 279, 284
(9th Cir. 1971), the court’s stated reasons for denying
prejudgment interest in this case appear to be questionable.
First, the district court seemed to suggest that
prejudgment interest is not appropriate when applied to an
award of non-economic damages. This is incorrect. We have
held that prejudgment interest is an element of compensation,
not a penalty. See Schneider v. Cnty. of San Diego, 285 F.3d
784, 789 (9th Cir. 2002) (explaining that prejudgment interest
“serves to compensate for the loss of use of money due as
damages from the time the claim accrues until judgment is

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entered, thereby achieving full compensation for the injury
those damages are intended to redress.”). Non-economic
damages awarded for a plaintiff’s pain and suffering are “just
as much an ‘actual loss’ (for which prejudgment interest is in
order)” as purely economic damages. See Murphy v. City of
Elko, 976 F. Supp. 1359, 1364 (D. Nev. 1997). Thus, to the
extent the district court denied prejudgment interest because
it thought such interest is unavailable for non-economic
damages, the district court abused its discretion.
Second, the district court refused to award prejudgment
interest because the jury returned a general verdict that did
not distinguish between past and future damages. Because
the district court believed that interest should not be awarded
with respect to future damages, the district court refused to
grant interest on any portion of the award. On remand, the
district court should consider the balance of the equities in
making this determination, including whether it may be
advisable to award prejudgment interest on a prorated portion
of the award. For instance, the district judge may consider
whether it is appropriate to award prejudgment interest for at
least that portion of the award that was likely given to Charles
in order to compensate him for his past pain and suffering and
medical expenses.12

12

The district court noted that the jury award of $2,111,656.52 was
exactly the sum of two figures Charles’s attorneys requested, $219,496.52
in past medical damages and $1,892,160 in pain and suffering damages.
At a minimum, then, the district court could properly award prejudgment
interest on the $219,496.52 requested (and presumably awarded) as
medical damages. And the district judge would also have discretion to
further prorate the damages award in order to provide interest on that
portion of the award that was intended to compensate Charles for the pain
and suffering he endured between the day of his injury and the day
judgment was entered.

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21

CONCLUSION
The district court properly denied the Officers’ motions
for judgment as a matter of law because the verdict is
supported by substantial evidence, and the Officers are not
entitled to qualified immunity. The district court abused its
discretion, however, where it awarded attorney fees without
adequately explaining the basis of its award, and where it
denied Charles pre- and post-judgment interest. We thus
vacate those two aspects of the district court’s orders and
remand for further proceedings consistent with this opinion.
Costs on appeal to plaintiff. Fed. R. App. P. 39(a)(4).
AFFIRMED IN PART, REVERSED IN PART,
VACATED, AND REMANDED.