Brubaker et al v. Tucson, City of et al

Filing 212

ORDERED that the Motion for Attorney Fees (Doc. 199 ) is DENIED. IT IS FURTHER ORDERED that the question of taxable costs is referred to the Clerk of the Court. Signed by Senior Judge David C Bury on 5/7/2020. (REVIEW ATTACHED ORDER FOR DETAILS) (MCO)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Brubaker, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-10-00649-TUC-DCB

City of Tucson, et al.,

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Defendants.

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The Court denies the request for attorney fees and refers the request for taxable costs

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to the Clerk of the Court. Fed. R. Civ. P. 54; LRCiv. 54.1. As noted by the Defendants,

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“[T]he importance of civil rights litigation cannot be overstated. It is often the only leverage

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that ordinary people have in forcing the government to take the Constitution seriously, and

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our courts are right to tread lightly in awarding fees lest they chill meritorious litigation.”

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(Motion (Doc. 199) at 6 (citing Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d

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1016, 1022 (9th Cir. 2003)). The Defendants assert that the Plaintiff’s case was meritless,

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and that he failed to accept a reasonable settlement offer and instead sought retribution in

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the form of protracted litigation. The Court disagrees.

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While the Court did grant a Rule 50 motion in favor of the Defendants at the end of

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a four-day jury trial, the Court also denied summary judgment because there was evidence

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supporting a question of fact material to the disposition of the case. Plaintiff alleged a

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constitutional violation of the Fourth Amendment to the United States Constitution for

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damages resulting for an alleged illegal search. Plaintiff alleged that the search warrant was

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not supported by probable cause because it contained false statements, which were made

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by the Defendant officers intentionally or with reckless disregard for the truth. In the state

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courts, an underlying criminal conviction had been dismissed based on a judicial finding

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that the warrant affidavit contained incorrect information. The constitutional claim hinged,

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here, on whether any incorrect information in the affidavit was intentional or made in

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reckless disregard for the truth. After a full hearing of the evidence, this Court dismissed

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on the merits because there was insufficient evidence for any reasonable jury to find that

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the Defendants acted with reckless disregard or intentionally to falsify the warrant. This

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was the basis for the Rule 50 qualified immunity dismissal of the case. The Court has

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reviewed the record relevant to granting Defendants’ Rule 50 motion and finds that its

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ruling on the merits did not suggest, and the Court did not intend to suggest, that the case

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lacked merit. (TR: Day 4 at 4-23 (Doc. 205)

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Accordingly,

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IT IS ORDERED that the Motion for Attorney Fees (Doc. 199) is DENIED.

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IT IS FURTHER ORDERED that the question of taxable costs is referred to the

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Clerk of the Court.
Dated this 7th day of May, 2020.

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