Raiche v. Pietroski

United States Court of Appeals
For the First Circuit

No. 09-1910

MATTHEW RAICHE,

Plaintiff, Appellee,

v.

JAMIE PIETROSKI,

Defendant, Appellant,

JAMES COYNE,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert B. Collings, U.S. Magistrate Judge]

Before

Thompson, Selya, and Dyk,* Circuit Judges.

Evan C. Ouellette, Assistant Corporation Counsel, with whom
William F. Sinnot, Corporation Counsel, was on brief, for
appellant.

Rudolph F. Miller, with whom Gabriela Mendoza was on brief,
for appellee.

October 25, 2010

*
Of the Federal Circuit, sitting by designation.
 THOMPSON, Circuit Judge. Officer Jamie Pietroski

suffered a late-night lapse in judgment and forcibly removed a

compliant Matthew Raiche from his stopped motorcycle in order to

arrest Raiche for, ironically, failure to stop. A jury saw the

irony and, after a trial on a number of related civil rights

claims, awarded Raiche damages for injuries sustained as a result

of Pietroski's use of excessive force. Pietroski filed post-trial

motions (1) for judgment as a matter of law on the ground that he

was entitled to qualified immunity because he had acted reasonably,

and (2) for a new trial on the ground that the jury's verdict was

not supported by the evidence. The district court denied

Pietroski's motions and entered judgment for Raiche.

Pietroski now appeals the district court's denial of his

post-trial motions and challenges the validity of the jury verdict

on the basis that the evidence does not support a finding of

excessive force. After careful review of the record, we agree with

the district court that the evidence supports a finding that

Pietroski acted unreasonably and may not avail himself of qualified

immunity's protection. We affirm.

I. Background

A. Facts

The parties present very different versions of the events

that culminated in the arrest of Raiche at 2:50 A.M. on Saturday,

August 17, 2002.

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 According to Boston Police Officers Pietroski and James

Coyne, they were inside their marked police cruiser parked on

Brigham Circle, in Roxbury, MA, when they spotted Raiche driving

his motorcycle without a helmet in violation of Mass. Gen. Laws ch.

90, § 7. The officers testified that they pursued Raiche in their

cruiser and signaled for him to stop, using the cruiser's overhead

lights. They then testified that, rather than pulling over, Raiche

led them on a chase, speeding and going the wrong way down one-way

streets. Under the officers' version of events, Raiche only

stopped when he negotiated a turn poorly and his motorcycle got

stuck between a parked vehicle and the curb of the sidewalk.

Raiche testified that no pursuit occurred as far as he

could tell, and as soon as he had the opportunity to stop safely

after he saw the cruiser's flashing lights, he pulled over in the

belief that the police wanted to pass him. According to Raiche, he

pulled over behind a parked vehicle, shut off his motorcycle's

engine, and "bounced" the motorcycle between his legs as he waited

15-20 seconds for the police to pass. Instead of passing him,

however, the cruiser skidded to a stop at an angle behind him.

The next thing he knew, he was being tackled off his bike.

Pietroski testified that he exited the cruiser and ran at

Raiche, shouting that he was a Boston Police Officer and

instructing Raiche to get down on the ground and show his hands.

However, both Raiche and Coyne testified that they did not hear

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Pietroski identify himself or give Raiche any instructions. In any

event, Pietroski reached Raiche within seconds, grabbed him by his

shoulders, and either "physically lift[ed] him off [his] bike and

tr[ied] to pull him as far away from that bike" as possible (under

Pietroski's version) or launched himself in the air and tackled

Raiche, football-style, to the ground (under Raiche's version).

Raiche's forehead struck the sidewalk, and the motorcycle landed on

top of his right leg. The force of Pietroski's takedown also

caused the motorcycle's handlebars and forks to bend and suffer

irreparable damage.

Pietroski then pulled up on Raiche's left arm to apply

handcuffs, twisting Raiche, who was still tangled up with the

motorcycle. According to Raiche, he asked, "Please, can you ease

up on my left arm? It comes out of socket." Raiche testified that

his left shoulder was partially dislocated during the handcuffing

process. Also while handcuffing Raiche, Pietroski put his knee on

the small of Raiche's back, which caused Raiche's head to hit the

pavement a second time.

As a result of the force used to make the arrest,

Raiche's motorcycle was rendered a total loss. In addition to the

temporarily dislocated shoulder, Raiche received cuts and abrasions

that did not require medical attention. Raiche submitted

photographs showing cuts on his face, on his right arm, on his

right knee, and on the back of his left leg.

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 Raiche was charged with the criminal offense of "failure

to stop for police officer" in violation of Mass. Gen. Laws ch. 90,

§ 25.

B. Procedural History

On May 5, 2006, Raiche filed suit against Officers

Pietroski and Coyne in the United States District Court for the

District of Massachusetts. Raiche asserted civil rights claims

under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act,

Mass. Gen. Laws ch. 12, §§ 11H & I (MCRA), alleging that his arrest

had been effected without probable cause and by means of excessive

force. Raiche also asserted common law claims alleging false

imprisonment and assault and battery.

A jury trial began on January 12, 2009. At the close of

Raiche's evidence, the officers filed a motion for judgment as a

matter of law based on, inter alia, qualified immunity, and the

officers renewed the motion at the close of all evidence pursuant

to Rule 50 of the Federal Rules of Civil Procedure. The district

court denied both motions without written findings or opinion.

On January 16, 2009, the jury returned verdicts in favor

of (1) Coyne on all claims against him, (2) Pietroski on the claims

asserting arrest without probable cause (§ 1983, MCRA, and false

imprisonment), and (3) Raiche on claims alleging that Pietroski

used excessive force to make the arrest (§ 1983, MCRA, and assault

and battery). The jury awarded Raiche $2,500 in compensatory

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damages but did not award punitive damages. On May 19, 2009, the

district court entered judgment in accordance with the verdicts.

On June 3, 2009, Pietroski renewed his motion for

judgment as a matter of law based on qualified immunity or, in the

alternative, insufficient evidence of excessive force; he also

moved in the alternative for a new trial.1 On June 4, 2009, the

district court denied his post-trial motions. Pietroski timely

filed his notice of appeal on June 18, 2009. This court has

jurisdiction pursuant to 28 U.S.C. § 1291.

II. Qualified Immunity

We will first address Pietroski's argument that he is

entitled to qualified immunity. A district court's denial of

qualified immunity is a legal determination that we review de novo.

Iacobucci v. Boulter, 193 F.3d 14, 22 (1st Cir. 1999). When

reviewing a question of qualified immunity originally resolved

after a jury verdict, we must construe the evidence in the light

most favorable to the party that prevailed at trial, giving

"deference . . . to the jury's discernible resolution of disputed

1
Raiche contends that Pietroski's post-trial motions were not
filed on the tenth business day after entry of judgment as required
by then-Rules 50(b) and 59(b) of the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 50(b) and 59(b) (2007) (amended
effective December 1, 2009 to extend the filing period to 28
calendar days). However, Raiche overlooks that Memorial Day, May
25, 2009, was excluded from the filing period because it was a
legal holiday. See Fed. R. Civ. P. 6(a)(4)(A) (2007) (amended
2009). Judgment was entered on May 19, 2009, and Pietroski's post-
trial motions were timely filed on June 3, 2009.

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factual issues." Id. at 23. Here, the jury returned a verdict in

Raiche's favor on his excessive force claims; thus, we construe the

facts in a manner supportive of that verdict. See id.; see also

Jennings v. Jones, 499 F.3d 2, 7 (1st Cir. 2007) ("[W]here the jury

has issued a general verdict . . . we view the facts in the light

most favorable to the verdict.") (internal quotation marks and

brackets removed). In the end, "[t]he availability of qualified

immunity after a trial is a legal question informed by the jury's

findings of fact, but ultimately committed to the court's

judgment." Acevedo-Garcia v. Monroig, 351 F.3d 547, 563 (1st Cir.

2003).

Qualified immunity affords limited protection to public

officials faced with liability under 42 U.S.C. § 1983, "'insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.'" Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, to

determine whether qualified immunity applies in a given case, we

must determine: (1) whether a public official has violated a

plaintiff's constitutionally protected right; and (2) whether the

particular right that the official has violated was clearly

established at the time of the violation. Estrada v. Rhode Island,

594 F.3d 56, 62-63 (1st Cir. 2010). These two prongs of the

analysis need not be considered in any particular order, and both

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prongs must be satisfied for a plaintiff to overcome a qualified

immunity defense. See Maldonado v. Fontanes, 568 F.3d 263, 269-70

(1st Cir. 2009). Additionally, in applying the second prong, we

must consider two subsidiary issues: (a) the clarity of the law in

general at the time of the alleged violation; and (b) the clarity

of the law as applied to the case – in other words, whether a

reasonable person in the defendant's shoes "would have understood

that his conduct violated the Plaintiff['s] constitutional rights."

Id. at 269. In conducting the whole analysis, we must take care

"to avoid the chilling effect of second-guessing where the

officer[], acting in the heat of events, made a defensible (albeit

imperfect) judgment." Statchen v. Palmer, --- F.3d ----, ---- (1st

Cir. 2010) [2010 WL 4027830, at *2] (citing Roy v. Inhabitants of

Lewiston, 42 F.3d 691, 695 (1st Cir. 1994)).

Although we do not need to follow the rigid structure

that we once did, we will proceed to conduct each step of the

analysis in the traditional order. This exercise reveals that,

given the jury's resolution of the facts, Pietroski's use of force

was not defensible and, therefore, that qualified immunity affords

him no refuge.

A. Qualified Immunity Applied to § 1983 Claim

Pietroski argues that he is entitled to qualified

immunity against Raiche's § 1983 excessive force claim. We will

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therefore examine both prongs of qualified immunity analysis as

applied to this claim.

1. Prong One: The Constitutional Violation

Excessive force claims are founded on the Fourth

Amendment right to be free from unreasonable seizures of the

person. See U.S. Const. amend. IV; Graham v. Connor, 490 U.S. 386,

394-95 (1989). The Fourth Amendment is implicated where an officer

exceeds the bounds of reasonable force in effecting an arrest or

investigatory stop. See Graham, 490 U.S. at 394-95. We analyze

excessive force claims according to the constitutional touchstone

of objective reasonableness, so we do not consider an officer's

subjective "intent or motivation." Id. at 397; see also Saucier v.

Katz, 533 U.S. 194, 202 (2001), abrogated on other grounds by

Pearson, 129 S.Ct. 808. Instead, we determine whether "the

defendant officer employed force that was unreasonable under the

circumstances." Jennings, 499 F.3d at 11; see also Graham, 490

U.S. at 397. This determination requires us to balance the

individual's interest against the government's, weighing three non-

exclusive factors: (1) "the severity of the crime at issue," (2)

"whether the suspect poses an immediate threat to the safety of the

officers or others," and (3) "whether [the suspect] is actively

resisting arrest or attempting to evade arrest by flight." Graham,

490 U.S. at 396; see also Morelli v. Webster, 552 F.3d 12, 23 (1st

Cir. 2009). Finally, because our analysis comes after a jury

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verdict in Raiche's favor, we must consider the sufficiency of the

evidence supporting a finding of excessive force. See Jennings,

499 F.3d at 11 n.12. This evidence may be in the form of "expert

testimony, lay testimony, or other evidence," as long as "the jury

could evaluate the reasonableness of [Pietroski's] conduct." Id.

at 15 n.15. Viewing the facts in the light most favorable to

Raiche, as we must, we conclude that there is ample evidence to

support the jury's finding that Pietroski's conduct was

unreasonable under the circumstances and, therefore, that a

constitutional violation occurred.

First, we consider each of the Graham factors in turn to

assess the reasonableness of Pietroski's conduct under the

circumstances that he faced. As to the severity of the crimes

involved, the police initiated their pursuit because Raiche was

committing a civil motor vehicle violation by failing to wear a

helmet while driving a motorcycle. See Mass. Gen. Laws ch. 90, §

7. The police then arrested Raiche for failing to stop when

signaled by police. See Mass. Gen. Laws ch. 90, § 25. Absent some

other heated circumstances, these relatively minor infractions do

not justify an officer in the violent act of physically removing a

person from a parked motorcycle and slamming him into the pavement,

let alone the additional force Pietroski applied when Raiche was on

the ground offering no resistance. As to the threat Raiche posed,

he remained on his motorcycle behind a parked car and never

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displayed any weapons or made any verbal threats. And as to

whether Raiche was attempting to flee or resisting arrest, he was

sitting on a stopped motorcycle. Moreover, he was not charged with

resisting arrest. Viewing the facts in the light most favorable to

Raiche, therefore, the force employed by Pietroski was unnecessary

to prevent Raiche from fleeing. Consequently, all of the Graham

factors indicate that Pietroski's use of force was wholly

unreasonable.

Looking beyond the Graham factors to the sufficiency of

the evidence, we find that the record contains ample evidence to

support a determination that Pietroski's conduct was unreasonable,

even under the Boston Police Department's own standards. Coyne's

candid testimony is particularly useful here. According to Coyne,

the Boston Police Academy instructs officers to follow the Use of

Force Continuum in determining the proper amount of force to use

when conducting a stop. The Continuum provides five levels of

intensity: (1) the presence of a uniformed police officer; (2)

verbal command, which includes a police car's overhead lights or

siren; (3) open-hand command, which entails physically taking

control of a person; (4) non-lethal incapacitating devices, such as

pepper spray; and (5) lethal force. Officers are to conduct a

traffic stop using the least amount of force necessary and to end

the use of force outright when a person has pulled over and

stopped. Coyne's testimony provided a clear framework for the jury

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to assess Pietroski's use of force; applying this framework, a

reasonable jury could easily conclude that the use of force should

have ceased when Raiche stopped and pulled over in response to the

cruiser's overhead lights. Such a conclusion would compel a

finding that Pietroski acted unreasonably when he slammed Raiche

and his motorcycle to the pavement.2

Notwithstanding our analysis of the Graham factors and

the sufficiency of the evidence, Pietroski contends that the

district court failed to account for the jury's verdict in his

favor on the issue of probable cause. Pietroski argues that his

limited success means that we should construe the facts in his

favor, not Raiche's. However, we may construe the facts relevant

to probable cause in Pietroski's favor and those relevant to

excessive force in Raiche's favor without any inconsistency. See,

e.g., Gallick v. Baltimore & O. R.R. Co., 372 U.S. 108, 119 (1963)

(providing that "it is the duty of the courts to attempt to

harmonize" a jury's findings "if it is possible under a fair

reading of them"). Indeed, a finding of excessive force may be

consistent with a finding of probable cause because the

"reasonableness" of an arrest "depends not only on when it is made"

2
Even absent Coyne's testimony, however, the jury could have
used simple common sense to conclude that Pietroski acted
unreasonably by tackling a compliant Raiche from his stopped
motorcycle. See Jennings, 499 F.3d at 15 (noting that common sense
may be an appropriate basis for a finding of excessive force).

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– e.g., after probable cause has accrued – "but also on how it is

carried out." Graham, 490 U.S. at 395.

Probable cause to make an arrest is satisfied where an

officer has reason to believe that a crime has been committed, and

this seems to be what the jury found. See Iacobucci, 193 F.3d at

23; see also Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir. 1997)

(holding that probable cause exists only if the facts within the

arresting officer's knowledge "are sufficient to lead an ordinarily

prudent officer to conclude that an offense has been, is being, or

is about to be committed"). According to the jury verdict form,

when Pietroski arrested Raiche, he had probable cause "to believe

that [Raiche] had committed the crime of failing to stop for a

police officer" (emphasis added). Guided by Coyne's testimony that

the use of a police cruiser's overhead lights signals a driver to

pull over and stop, the jury could have concluded that the police

had probable cause to believe Raiche failed to submit when he did

not immediately pull over in response to the cruiser's overhead

lights. Under the same set of facts, the jury reasonably could

have concluded that Raiche pulled over and stopped after he became

aware of the cruiser's overhead lights and that no use of force was

required thereafter. Thus, the jury was free to conclude – as it

did – that the arrest was made at a reasonable time (after probable

cause had accrued), but in an unreasonable manner (by the exercise

of excessive force).

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 In all, both the law and the evidence support the jury's

and the district court's determination that Pietroski violated

Raiche's Fourth Amendment right to be free from unreasonable

seizures by employing excessive force against him. We now turn our

attention to the question of whether this right was clearly

established at the time Pietroski committed the violation.

2. Prong Two: The Right was Clearly Established

Pietroski may still mount a successful qualified immunity

defense if Raiche's Fourth Amendment right was not clearly

established at the time Pietroski committed the violation. As set

forth above, to determine whether the right was clearly

established, we must consider two subsidiary issues: (a) the

clarity of the law in general at the time of the alleged violation;

and (b) the clarity of the law as applied to the case – in other

words, whether a reasonable person in the defendant's shoes "would

have understood that his conduct violated the plaintiff['s]

constitutional rights." Maldonado, 568 F.3d at 269.

a. The Clarity of the Law in General

To determine whether the law is clear in general, we must

define "the right allegedly violated . . . at the appropriate level

of specificity." Wilson v. Layne, 526 U.S. 603, 615 (1999). Once

we have defined the right, we often consider whether the violation

itself is clearly established; a violation is clear "either if

courts have previously ruled that materially similar conduct was

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unconstitutional," or if the conduct was "such an obvious violation

of the Fourth Amendment's general prohibition on unreasonable force

that a reasonable officer would not have required prior case law on

point to be on notice that his conduct was unlawful." Jennings,

499 F.3d at 16-17; see also United States v. Lanier, 520 U.S. 259,

271 (1997).

Here, the question may be defined specifically as

whether prior existing case law or general Fourth Amendment

principles gave Pietroski notice that it is unconstitutional for a

police officer to exert against a person the considerable force

used in this incident. We need not decide whether there are

materially similar cases of controlling authority or a consensus of

persuasive authority existing at the time of the incident which

would have clearly established the law. Cf. Wilson v. Layne, 526

U.S. 603, 617 (1999) (law is generally unclear where there is no

controlling authority or general consensus directly on point).

This is because Pietroski's excessive conduct was "such an obvious

violation of the Fourth Amendment's general prohibition on

unreasonable force that a reasonable officer would not have

required prior case law on point to be on notice that his conduct

was unlawful." Jennings, 499 F.3d at 16-17.

A reasonable officer with training on the Use of Force

Continuum would not have needed prior case law on point to

recognize that it is unconstitutional to tackle a person who has

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already stopped in response to the officer's command to stop and

who presents no indications of dangerousness.3 Such conduct is a

major departure from reasonable behavior under both the Graham

factors and the officer's training. Indeed, Pietroski jumped

immediately to the extreme end of the "open-hand" force category on

the Use of Force Continuum, tackling rather than otherwise subduing

Raiche, slamming his head to the pavement, and destroying his

motorcycle. Given the overall state of the law at the time of

Raiche's arrest and the violence of Pietroski's conduct, it was

clearly unconstitutional for a police officer to apply the force

that Pietroski did under the circumstances.

b. The Clarity of the Law as Applied

Not only was the law generally clear that Pietroski's

conduct violated Raiche's right to be free from unreasonable

seizures, but it was also sufficiently clear that "an objectively

reasonable [officer] would have believed that the action taken

violated that clearly established constitutional right." Jennings,

499 F.3d at 18 (internal quotation marks omitted). As our previous

discussion makes clear, the record does not reveal any

3
Raiche and Coyne testified that they did not hear Pietroski
give Raiche any instructions; therefore, taking the facts in
Raiche's favor, the only command at issue is the officers' use of
the cruiser's overhead lights. However, even if Pietroski did
command Raiche to show his hands and get down on the ground while
running from the cruiser to Raiche, Raiche would not have had time
to comply – according to Pietroski's testimony, the cruiser had
parked within ten feet of Raiche's motorcycle, so Pietroski could
not have taken more than a couple of seconds to reach Raiche.

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circumstances that would support Pietroski's use of force as

reasonable, but it does reveal that an officer with Pietroski's

training should not have used the force that he did. Thus,

Pietroski cannot claim that he "was reasonably mistaken as to the

degree of force he should have used," and he has no recourse to

qualified immunity. Id.

We sympathize with the challenging work of police

officers, which often forces them to make "split-second judgments

– in circumstances that are tense, uncertain and rapidly evolving

– about the amount of force that is necessary in a particular

situation." Graham, 490 U.S. at 396. However, we do not find such

circumstances here. An objectively reasonable police officer would

have believed that tackling Raiche from his motorcycle and slamming

him into the pavement would violate his constitutional right to be

free from excessive force.

We have found that the record contains sufficient

evidence to support the jury's verdict that Pietroski used

excessive force to arrest Raiche in violation of his Fourth

Amendment rights. Additionally, we have found that the law at the

time was clearly established enough to caution Pietroski that the

force he exercised against Raiche was excessive. Finally, we have

found that an objectively reasonable officer under the specific

circumstances in which Pietroski found himself would have believed

that the force that Pietroski used to make the arrest was

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excessive. Therefore, Pietroski is not entitled to qualified

immunity against Raiche's excessive force claim under § 1983. We

affirm the denial of Pietroski's motion for judgment as a matter of

law on Raiche's § 1983 excessive force claim.

B. Qualified Immunity Applied to State Law Claims

Pietroski also contends that he is entitled to qualified

immunity against Raiche's excessive force claims asserted under

state law. Our above analysis compels us to hold otherwise.

Nevertheless, we will briefly address each state claim.

1. MCRA

The MCRA is the state analog to § 1983 and provides a

cause of action for an individual whose rights under the

constitution or laws of either the United States or the

Commonwealth of Massachusetts have been interfered with by

"threats, intimidation or coercion." Mass. Gen. Laws ch. 12, §§

11H & I. Most importantly here, the Supreme Judicial Court of

Massachusetts has held that MCRA claims are subject to the same

standard of immunity for police officers that is used for claims

asserted under § 1983. Duarte v. Healy, 405 Mass. 43, 46 (1989);

see also Dean v. City of Worcester, 924 F.2d 364, 369-70 (1st Cir.

1991). Raiche's MCRA claim, like his § 1983 claim, is based on the

allegation that Pietroski used excessive force to arrest Raiche.

Because we have already determined that Pietroski is not protected

by qualified immunity with respect to the § 1983 excessive force

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claim, we likewise conclude that he is not entitled to qualified

immunity against the MCRA claim alleging excessive force.

2. Common Law Claims for Assault and Battery

Massachusetts law allows for assault and battery claims

against police officers who use excessive force in conducting an

arrest. See Powers v. Sturtevant, 85 N.E. 84, 84 (Mass. 1908)

(holding that defendant officer "had not the right to use

unreasonable or excessive force and if he did, he is liable to the

plaintiff for any injury suffered in consequence thereof"); see

also Dean, 924 F.2d at 369. However, Massachusetts law also allows

an officer to use reasonable force in conducting a lawful arrest:

reasonable force is a valid defense to assault and battery. See

Dean, 924 F.2d at 369. Where a plaintiff alleges both a § 1983

excessive force claim and common law claims for assault and

battery, our determination of the reasonableness of the force used

under § 1983 controls our determination of the reasonableness of

the force used under the common law assault and battery claims.

See id. We have already held that Pietroski used excessive force;

therefore, we must uphold the jury's verdict that Pietroski

committed assault and battery.

Pietroski also asserts that he is entitled to state

qualified immunity against Raiche's common law claims of assault

and battery. Massachusetts law is unsettled regarding the

existence of a state-law concept analogous to federal qualified

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immunity. See Foster v. McGrail, 844 F. Supp. 16, 29 (D. Mass.

1994). Despite uncertainty regarding the existence of state

qualified immunity, we do not need to address this issue because we

have already found that Pietroski is not entitled to qualified

immunity at all.

In conclusion, Pietroski is not entitled to qualified

immunity against Raiche's excessive force claims made under state

law for precisely the same reasons that he is not entitled to

qualified immunity against Raiche's excessive force claim made

under § 1983. We therefore affirm the denial of Pietroski's motion

for judgment as a matter of law on the state law excessive force

claims.

III. New Trial

Qualified immunity aside, Pietroski requests in the

alternative that this court order a new trial on Raiche's excessive

force claims. As grounds for a new trial, Pietroski asserts that

the evidence in the record does not support the jury's verdict

against him and that allowing the verdict to stand would result in

a miscarriage of justice.

Where the trial judge has denied a motion for a new trial

on the issue of the sufficiency of the evidence, it is "only in a

very unusual case that we will reverse such a ruling as an abuse of

discretion." Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987)

(quoting Sears v. Pauly, 261 F.2d 304, 309 (1st Cir. 1958)). "[We]

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may set aside a jury's verdict and order a new trial only if the

verdict is against the demonstrable weight of the credible evidence

or results in a blatant miscarriage of justice." Sanchez v. P.R.

Oil Co., 37 F.3d 712, 717 (1st Cir. 1994).

We have already concluded that the jury's verdict against

Pietroski on the excessive force claims was supported by

sufficient, and in fact quite ample, evidence in the record. See

supra Part II.A.1. Therefore, a new trial is not warranted. See

Sanchez, 37 F.3d at 717. Moreover, given the jury's finding that

Pietroski used substantial physical force against a stopped and

compliant individual suspected of only minor infractions, upholding

the verdict is simply not any kind of miscarriage of justice let

alone a blatant one. See id. The district court did not abuse its

discretion in denying the motion for a new trial; accordingly, we

affirm.

IV. Conclusion

For the reasons set forth above, we affirm the district

court's denial of Pietroski's post-trial motion for judgment as a

matter of law and motion for a new trial.

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