(concurring in part, dissenting in part).
I agree with the majority that the plaintiff in this case won no more than a minor victory. She fought with a neighbor; she and the neighbor each told the police a different story; the police believed the neighbor’s claim that she threatened the neighbor with a knife; and the police arrested her. The jury found that the police should have checked further before arresting plaintiff. In doing so, they had to find, at least, negligent conduct (but, because defendants waived a potentially valid qualified-immunity defense, the jury did not have to find egregious conduct). The jury then awarded damages that, after eliminating double counting and correcting for inconsistencies, amount to $1000. In the context of this case, I can find no matter of significant principle that plaintiff sought and established. Rather, in that context, the $1000 award seems to comprise a small victory on a few of many claims that plaintiff made in this much larger case.
I do not agree with the majority, however, that an unreasonably high fee demand by the plaintiff's trial attorney forfeits her right to any fee at all. Plaintiff did prevail to some minor extent. And, a “prevailing party is ordinarily entitled to fees unless special circumstances would render such an award unjust.” Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939, 942 n. 1, 103 L.Ed.2d 67 (1989) (internal quotations omitted); Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (same). The district court, in this case, did not find that overreaching “would render” a fee “award unjust.” And, in my view, this court should not require the district court to reach a different result. Other courts of appeals have permitted district courts to find that overreaching constitutes a “special circumstance” warranting fee forfeiture; they have not required a district court to do so. See Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir.1980); see also Hall v. Borough of Roselle, 747 F.2d 838, 841-42 (3d Cir.1984) (dictum); Jordan v. United States, 691 F.2d 514, 518-21 (D.C.Cir.1982) (dictum).
Because the record convinces me that the plaintiff spent much of her legal effort trying (but failing) to establish a claim against the city, I believe the $50,000 fee award is well out of proportion to the legal work needed to obtain her $1000 victory against the individual policeman. At the same time, plaintiffs trial attorney is entitled to recover some small fee. I therefore would grant rehearing and (were I in the majority) recalculate the fee on the basis of the record before us or remand this case with instructions for recalculation.