Barry M. Hopkins, Husband and Katie M. Hopkins, Wife v. City of Sierra Vista, Arizona, a Body Politic, and Steven Gerhardt

ORDER

The memorandum disposition filed March 6, 1991, is redesignated as an authored opinion by Judge Beezer.

Barry and Katie Hopkins appeal the grant of summary judgment and the award of attorneys’ fees in favor of the defendants in a civil rights action brought pursuant to 42 U.S.C. § 1983 . We reverse and remand for trial on the question of liability and reverse the award of attorneys’ fees.

I

Shortly after midnight on April 2, 1988, Plaintiff Barry Hopkins returned to his home at apartment 728 of the Sinaloa Apartments. He played dominoes with his brother-in-law and then played cards with other friends and acquaintances who came to the apartment after he arrived home. While playing, Hopkins and his friends drank beer and whiskey.

Later that morning, the police department for the City of Sierra Vista received an anonymous telephone call reporting that a woman in apartment 728 of the Sinaloa Apartments was “getting the shit beat out of her” and that the violence had “been going on for hours.” Officer Steven Ger-hardt responded to the call, arriving at the Sinaloa Apartments at approximately 4:04 a.m.

When Gerhardt arrived at the Sinaloa Apartments, he may have heard sounds…