Punitive Damages are Proper Where Officer Intends to Oppress

Dang v. Cross (CA9) deals with two questions. First, in an excessive force case, can oppressive conduct can serve as a predicate for punitive damages under § 1983? Second, should Steve Yagman's 1988(b) hourly rate be more than $400?

In this civil rights action, under 42 U.S.C. § 1983, Plaintiff H.N. Dang prevailed in a jury trial on his excessive force claim against Officer Gilbert Cross of the City of Compton Police Department and was awarded compensatory damages, but not punitive damages. We consider Dang’s consolidated appeals. Dang first challenges the district court’s refusal to instruct the jury that oppressive conduct can serve as a predicate for punitive damages under § 1983. Second, Dang contends that the district court erred in its calculation of reasonable attorney’s fees and costs under 42 U.S.C. § 1988.

We hold that the district court erred in failing to instruct the jury that it could award punitive damages if it found that Cross acted in an oppressive manner and we conclude that this error was not harmless. Second, we hold that the district court did not abuse its discretion in determining the reasonable hourly rate it applied in calculating the fee award. We vacate the fee award and remand, however, for further consideration of the reasonable hours expended in light of the proper legal standard and for reimbursement of the cost of recording an abstract of judgment.

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