Here's one way to get an award of attorney's fees when only nominal damages were awarded at trial:
The jury awarded no compensatory damages, and this lack of damages normally would weigh against a fee award. See Farrar, 506 U.S. at 115. But on the other hand, the jury held that Maley used excessive force, and an award of fees is justifiable if the jury verdict prompted a tangible benefit. Here, we conclude that a fee award serves a purpose beneficial to society by encouraging the City of San Diego to ensure that all ofits police officers are well trained to avoid the use of excessive force, even when they confront a person whose conduct has generated the need for police assistance.
Perhaps more important, a fee award sends an unmistakable message to the City and its police department that even when police officers reasonably must take forceful actions in response to an incident, and even when such forceful actions are permissible at first, if the officers go too far by unnecessarily inflicting force and pain after a person is subdued, then the force, unnecessary in part of the action, can still be considered excessive.
As an example, suppose extreme force isneeded to subdue a violent offender. Nonetheless, for police officers to then kick the person when he or she is down, or touse pepper spray to cause pain without any need to use it for safety, may be considered excessive force by a jury. This is significant here because the SDPD internal affairs division concluded, contrary to the jury, that Maley did not use excessive force. See Morales v. City of San Rafael, 96 F.3d 359,363-64 (9th Cir. 1996) (reasoning that if the jury had awarded only nominal damages, the plaintiff would nonetheless have been entitled to attorney’s fees because his victory served the public purpose of helping to protect him and others from being subjected to similar unlawful treatment in the future and constituted a warning to law enforcement officers to treat civilians in a constitutional manner).Guy v. San Diego (CA9 (here).