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Judges Edward E. Carnes and Charles R. Wilson of the 11th U.S. Circuit Court of Appeals continue to argue over the way courts should grant attorney fees to lawyers who bring successful civil rights cases. Six months ago the U.S. Supreme Court mostly sided with Carnes, who had objected to a $10.5 million award granted to a team that included Atlanta plaintiffs’ lawyers he called greedy. The lawyers had brought litigation that revamped Georgia’s foster care system. Wilson had defended U.S. District Senior Judge Marvin H. Shoob’s discretion to give the lawyers a $4.5 million bonus on top of a $6 million fee based on their hourly rates. The Supreme Court tossed the award and noted that judges theoretically could give enhanced fees for superior performance. This week Carnes and Wilson battled over attorney fees again, with Wilson dissenting from the full court’s decision not to reconsider an opinion by Carnes that vacated a $70,533 fee award. In that case, the plaintiffs’ attorneys convinced a trial judge that an Alabama sheriff’s deputy had violated then-9-year-old Laquarius Gray’s constitutional rights when he handcuffed her for talking back to her gym teacher. But a jury awarded only $1 in damages. The 11th Circuit said the district court must reexamine the fee issue because the trial judge overvalued the impact that a previous appellate win by the girl has had on other cases. “Just as one bad ingredient can spoil a stew, one error of law can spoil an order,” Carnes wrote in his concurrence to the full court’s decision not to rehear the case, issued Tuesday. “And in this case it did. The dissent would have us cook up a new order ourselves, but we will leave the do-over to the district court.” In his dissenting opinion, Wilson called that result “a colossal waste of judicial resources.” He wrote that Carnes’ opinion for the three-judge panel made too big a deal of since-retired U.S. District Judge U.W. Clemon’s reliance on the number of times courts have cited the 11th Circuit’s earlier ruling in the case. “[T]he panel’s opinion ignores the district court’s essential point—that Gray’s case has already provided a concrete public benefit for school children who were subjected to Fourth Amendment violations,” wrote Wilson. “While [Carnes'] concurrence insists that the opinion does nothing more than state that the district court committed a narrow error of law, the panel’s opinion goes much further than that, mangling the district court’s order … beyond recognition.” According to the 11th Circuit’s 2006 ruling, the fee dispute stems from an incident in which Gray wasn’t doing her jumping jacks with the rest of her physical education class. When a teacher, Lattuce Greer Williams, spoke to Gray about her lack of participation, Gray said something disrespectful to him. A teacher who was nearby, Tara Horton, testified that Gray told Williams, “I bust you in the head.” In her deposition, Gray denied she said that, but admitted she told him she might “do something” to him. Williams testified he wasn’t afraid Gray would do anything violent toward him or Horton, and Horton said she would not have been required to write Gray up, give her detention or send her to the principal’s office “because it wasn’t that major.” But Antonio Bostic, a Tuscaloosa County sheriff’s deputy assigned to the school as a “school resource officer,” witnessed the exchange between Gray and Williams. Horton told him she would handle the matter, but Bostic escorted Gray out of the gym into a lobby. He handcuffed Gray behind her back. Gray says Bostic tightened the handcuffs to the point that she was in pain and began to cry. She says he told her, “[T]his is how it feels when you break the law,” and “[T]his is how it feels to be in jail.” Gray says she remained in handcuffs for at least five minutes, while Bostic says it was less than 30 seconds. Bostic was never deposed, but he said in a discovery response that he handcuffed Gray “to impress upon her the serious nature of committing crimes that can lead to arrest, detention and incarceration” and “to help persuade her to rid herself of her disrespectful attitude.” Through her mother, Gray sued Bostic, the county sheriff and school officials (but not the teachers). She dismissed the claims against the school officials. Clemon rejected the sheriff defendants’ arguments that they were entitled to qualified immunity from the suit. In August 2006, an 11th Circuit panel comprised of Carnes and Judges Frank M. Hull and William H. Pryor Jr. said the sheriff should get summary judgment, but it allowed the case against Bostic to go forward. Hull acknowledged for the panel that there was no court decision in a case just like Gray’s that had put Bostic on notice that his use of handcuffs to discipline Gray was unreasonable under the Fourth Amendment. But she added that Gray’s was the rare case in which the law was obvious: “Every reasonable officer would have known that handcuffing a compliant nine-year-old for purely punitive purposes is unreasonable.” The case went to trial before a jury, but Clemon granted judgment as a matter of law in favor of Gray against Bostic. The judge had the jury determine damages. Gray’s lawyers asked for $25,000; the jury awarded $1. Bostic brought an appeal, which was rejected in 2008 by Carnes, Judge Susan H. Black and Senior Judge Emmett Ripley Cox, setting up the attorneys’ fee dispute. Gray’s lawyers asked for $78,390, and Clemon awarded $70,533. Clemon explained that it is difficult to find lawyers to take civil rights cases on a contingency basis. He noted that he would have granted a motion for new trial on damages—had plaintiff’s counsel filed one. To support his conclusion, Clemon said the 2006 11th Circuit ruling allowing the case to go to trial had already been cited in more than 50 other cases. Bostic, who would be personally responsible for the fee award, according to his lawyer, appealed the order to the 11th Circuit, and, in June 2009, Carnes, Black and Senior Judge Peter T. Fay vacated the award. Carnes wrote for the panel that while attorneys’ fees could be awarded in a nominal damages case, it would need to be an exceptional case. Carnes wrote that the panel wasn’t ruling on whether Gray’s case was exceptional because Clemon’s reasoning contained errors that required the judge to redo his order. Carnes said that Clemon overstated the significance of the 2006 11th Circuit ruling, Gray ex rel. Alexander v. Bostic, 458 F.3d 1295. Carnes noted that the decision had been cited only three times for the key point of Fourth Amendment law on which Gray won. Referring to his comments in the Georgia foster care case, in which he said work like that enhanced lawyers’ community standing, Carnes said there wasn’t anything in the record to support Clemon’s conclusion that Gray’s case was an undesirable one for her lawyers to take. Fourteen months later, unbidden by any party to review its decision, the panel issued a revised ruling under Carnes’ name. The outcome was the same, but this time Carnes’ writing was more extensive—and pointed. He said Clemon may have used his attorneys’ fee ruling as “an end-run around the jury’s nominal damages award.” Carnes wrote that the panel didn’t think that was allowed, but the court need not decide that point, as Clemon had retired from the bench, and the appellate judges had “no reason to believe that the new judge will use that same reasoning.” Again, no party asked for a rehearing or en banc review, but at least one member of the 11th Circuit had concerns, resulting in Tuesday’s order revealing that the full court had declined to hear the case. In his dissent from the denial of en banc review, Wilson labeled “cynical” Carnes’ remarks suggesting Clemon had tried to override the jury’s verdict through his fee award. Wilson also dismissed the panel’s finding on Clemon’s remark about how important the 2006 decision was as identifying a “supposed error of law.” Defending the court’s decision to deny en banc review, Carnes wrote that Wilson’s opinion does not explain how Clemon’s error “could be anything other than an actual, no-kidding, sure-enough error of law to include as establishing ‘the significance of the legal issue on which the plaintiff prevailed’ … citations to the Gray II decision on points that the plaintiff lost.” Black joined Carnes’ concurrence. Auburn attorney Travis R. Wisdom, who represents Bostic, said the 11th Circuit’s message is that trial judges must state clear and convincing reasons for awarding attorney fees. He disagreed that Gray’s underlying victory was groundbreaking. Wisdom said Bostic had been instructed to show zero tolerance for threats of violence and cut Gray a break by allowing her to go back to class rather than taking her to a juvenile detention facility. “Now we have somewhat curtailed law enforcement’s desire or willingness to act upon threats of violence for fear of civil liability,” Wisdom said. “Perhaps that is a little bit new, but that’s a sad day.” Birmingham lawyer H. Arthur Edge III, who has represented the plaintiff on the attorney fee issue, couldn’t be reached. But T. Blake Liveoak, another Birmingham lawyer who tried the case with Edge but no longer has a financial interest in the case, said Bostic should have listened to the teachers. “I understand the zero tolerance policy,” said Liveoak, “but you’ve got to exercise a little bit of common sense.” Staff Reporter Alyson M. Palmer can be reached at [email protected]

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