by Mark Wilson

 On August 4, 2011, a federal court in Washington state granted attorneys’ fees and costs on a Plaintiff’s Terry stop verdict. Yet the court reduced the $418,000 fee award request to just $90,042.12 because Plaintiff prevailed on just one of five claims, and the jury did not award compensatory damages.

After midnight on September 9, 2007, Andrew Rutherford and Myo Thant were passengers in a Jeep driven by Jared Alfonzo in Seattle. Alfonzo supposedly ran a red light in front of a car driven by off-duty Seattle police officer Jonathan Chin, forcing him to brake suddenly.

Chin suspected the driver of driving under the influence of intoxicants or reckless driving. Chin followed the Jeep despite being in his personal vehicle and not wearing his uniform.

Chin momentarily lost sight of the Jeep during the chase. When he relocated the Jeep, it was parked and Rutherford, Alfonzo and Thant were standing next to it. Chin exited his vehicle, identified himself as a police officer, drew his gun and ordered Thant to submit to a pat-down.

Alfonzo admitted that he had been driving.

Chin ordered the men to sit on the street in front of his car as he called for “fast backup,” which is a high-priority request for assistance.

Fearing he would be hit by Officer Jason McKissack’s rapidly approaching patrol car, Rutherford “jumped up and ran” out of the way.

When Rutherford did not comply with Chin’s orders to sit back down, Chin grabbed his head and forced him to the ground. McKissack and Officer Joshua Rurey assisted Chin. Rutherford’s forehead was injured when McKissack pushed his face into the pavement with hands and knee, during handcuffing.

Rutherford was charged with obstructing a public officer, but the charges were dismissed.

He then brought a federal suit alleging unlawful seizure and unlawful arrest claims against Chin, an excessive force claim against all three officers, and two state law torts against the City.

Following a seven-day trial, a federal jury unanimously ruled in Rutherford’s favor on his unlawful seizure claim, finding that Chin violated the Fourth Amendment by exceeding the reasonable length and scope of the investigatory stop. The court found for Defendants on all other claims.

The jury did not award Rutherford any compensatory or nominal damages. Finding an error in the verdict form, the district court granted Rutherford’s motion for judgment notwithstanding the verdict and awarded him $1 in nominal damages.

Rutherford then moved for an award of $437,700.96 in attorneys’ fees and costs. The Court granted the motion, finding that Rutherford was the prevailing party even though he initially sought $3 million in damages but was not awarded any damages.

Seattle Assistant Police Chief Dick Reed belittled the importance of the ruling and declared that the department would not revisit training protocols or policies in response to the verdict.

“It is a sad day when the Seattle Police Department cannot stop to reflect upon the voices of citizen jurors who think their conduct has overstepped the line or contemplate a change when an officer’s judgment is found wanting,” the court declared. “It should be a marker laid down to police officers that their authority is not absolute and before deadly force is used or displayed to gain compliance with their orders they must recognize that citizens hold precious rights given to them by the Constitution that cannot be breached.”

After considering Rutherford’s degree of success, the court found that an 80 percent reduction of the requested fee award was reasonable, awarding just $83,600. The court also reduced the amount of the requested costs, ultimately awarding $6,442.12 in fees, for a total award of $90,042.12. See: Rutherford v. McKissack, USDC No. C09-l 693-MJP (W.D. Wa. Aug 4, 2011).

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