The 8th U.S. Circuit Court today upheld more than $15,000 in attorney fees for a man who sued a state trooper over his arrest for yelling an expletive at him.

Eric Thurairajah sued Trooper Lagurian Cross for his 2015 arrest in Fort Smith after he yelled “fuck you” at Cross while driving by Cross during his stop of another driver. Judge P.K. Holmes issued summary judgments on several points of the case, but sent it to a jury for damages after a trial. The jury awarded no damages, but Holmes awarded nominal damages of $1. He also awarded $15,100 in attorney fees and $609 in costs to Thurairajah’s lawyer.

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Both sides had points of appeal. The plaintiff wanted a new trial. He also said Holmes had erred by not letting him seek punitive damages. The trooper challenged attorney fees. The 8th Circuit had already, on an intermediate basis in 2019, settled the key question: An arrest over shouting a curse word isn’t justified.

In a 2-1 decision today, the 8th Circuit upheld all of Holmes’ rulings. Significant was the upholding of the attorney fees. Cross had argued it wasn’t justified because of the big discrepancy between the damages sought and the amount awarded.

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The 8th Circuit commented:

The discrepancy between the amount Thurairajah sought (initially, $25,000 and then $5,000) and the amount received (one dollar in nominal damages) is substantially less than the discrepancy in Farrar ($17 million sought and one dollar in nominal damages received). Second, the district court recognized the significance of the legal issue; Trooper Cross “violated [Thurairajah’s] [F]irst and [F]ourth [A]mendment rights in a very specific way — by arresting [him] for exercising his right to free speech despite clearly established law prohibiting that arrest.” Third, a public goal has been served by Thurairajah’s victory because “[t]he Missouri Sheriff’s Association integrated Thurairajah’s case in their legal training update.” Lastly, as in Piper, after determining that Thurairajah was entitled to an attorney’s fee award, the district court “then evaluated [Thurairajah’s] requested fees in light of the nominal damages award and reduced the fees” by almost $8,000 in attorney’s fees and $122.42 in costs

Judge Jane Kelly dissented on a key point. She said the court should have considered the plaintiff’s claim of a violation of the Arkansas Civil Rights Act for abridging his constitutional rights and his request for punitive damages. She said the law allows a claim for “conscious violation of the law,” which strips the trooper of qualified immunity.

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Thurairajah described the arrest as “hostile,” “violent,” and “personal.” He testified that Trooper Cross yelled at him to get out of the car, walked towards him “fast,” and asked him if he “thought that s**t was cute.” Thurairajah also testified that Trooper Cross was “aggressively moving [him] around” during the arrest, was “very aggressive through all the searches [of him],” and “was obviously very angry.” At one point, Trooper Cross told Thurairajah, “You can’t talk to cops like that; you can’t yell F-you to a cop.” And at the jail later, Thurairajah heard Trooper Cross tell someone, “This kid said ‘F**k you’ to a cop; so I thought I would bring him in.” Viewing these facts in Thurairajah’s favor, a jury could reasonably conclude that Trooper Cross arrested Thurairajah not because he believed Thurairajah engaged in disorderly conduct, but because he was angered by the profanity Thurairajah directed at him. And given that it was clearly established at the time that “[c]riticism of law enforcement officers, even with profanity, is protected speech,” a jury could conclude that Trooper Cross consciously violated the law or  arrested Thurairajah “without just cause or excuse, [and] with an intent to inflict injury,”