Parker v. Gerrish

United States Court of Appeals
For the First Circuit
No. 08-1045

STEPHEN PARKER,
Plaintiff, Appellee,

v.

KEVIN GERRISH,
Defendant, Appellant,

and

CITY OF SOUTH PORTLAND; SOUTH PORTLAND POLICE DEPARTMENT;
EDWARD GOOGINS, in his individual and official capacities;
JEFFREY CALDWELL, in his individual and official capacities;
and TODD BERNARD, in his individual and official capacities,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. David M. Cohen, U.S. Magistrate Judge]

Before

Torruella, Boudin, and Dyk,*
Circuit Judges.

Edward R. Benjamin, Jr., with whom Thompson & Bowie, LLP, was
on brief for appellant.
Benjamin R. Gideon, with whom Berman & Simmons, P.A., was on
brief for appellee.

November 5, 2008

*
Of the Federal Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. A jury found in favor of

plaintiff, Stephen Parker, on his claim that defendant, Officer

Kevin Gerrish of the South Portland Police Department, violated his

constitutional rights by using his Taser during the course of

arresting Parker for operating a motor vehicle while under the

influence of alcohol. The jury awarded $111,000 to Parker, who

complained that the use of the Taser and subsequent cuffing caused

nerve damage to his arm and injured his shoulder. After trial, the

district court denied Gerrish's motions for judgment as a matter of

law and a new trial. On appeal, Gerrish disputes the finding of

excessive force, argues that he is entitled to qualified immunity,

and challenges the district court's answer to a jury question as

responsible for an inappropriate damages award. After careful

review of the record, including a videotape recording of the

incident, we affirm.

I. Background

A. Facts

We present the facts by construing the evidence in the

light most hospitable to the jury's verdict. Jennings v. Jones,

499 F.3d 2, 7 (1st Cir. 2007). To clarify our later discussion, we

also note some points of dispute.

At around noon on July 20, 2005, Parker and his

girlfriend went boating. While on the boat, Parker consumed "3 or

4" 16 ounce cups of a cocktail of ginger ale and whiskey. At

-2-
around 7:00 PM, Parker docked his boat in the marina and proceeded

to drive his girlfriend home. While driving home, Parker passed

Gerrish, who was serving a warrant with Officer Jeffrey Caldwell.

Gerrish observed Parker's vehicle, visually estimated that Parker

was speeding, pursued Parker, and effected a traffic stop. When

Gerrish turned on his police lights, a video camera began

recording. The video recording did not include audio. This

recording indicates the time of the stop to be approximately 7:49

PM.

Gerrish asked Parker for his license and registration and

noticed indicia of intoxication. Parker admitted to Gerrish that

he had three or four drinks. At trial, Parker did not dispute that

he was intoxicated at the time of the stop. Gerrish ordered Parker

to exit the vehicle, and Parker complied. Gerrish and Parker moved

behind Parker's vehicle, in direct view of the video camera.

Parker cooperated with Gerrish through a number of sobriety tests,

which Gerrish found indicated that Parker was intoxicated.

In one test, Gerrish asked Parker to stand on his left

foot. Gerrish demonstrated the procedure a number of times.

Parker attempted the test but eventually began hopping, lost his

balance, spun around, placed his hands on his vehicle, and said,

"[D]o what you got to do." Parker expected to be arrested and

Gerrish understood that Parker was giving himself up for arrest.

At this point, approximately 7:57 PM on the video recording,

-3-
Gerrish had been questioning Parker for approximately seven

minutes.

Caldwell arrived on the scene during earlier tests, but

was not initially within view of the video camera. Caldwell

testified that his badge was on display and that he did not

intervene in Gerrish's interview of Parker. But Parker testified

that Caldwell's badge was not on display at first and that he did

not learn until later in the encounter that Caldwell was a police

officer. Parker further testified that Caldwell made intimidating

gestures at Parker, shouted at Parker, and led Parker to be

confused at some of Gerrish's instructions. Specifically, Parker

testified that after he turned to place his hands on his truck,

Caldwell was being "boisterous" and ordered him to turn back

around. Gerrish also ordered Parker to turn around. Parker

complied by turning back around, but admits that as he turned back

to face the officers, he gave Caldwell the finger and said, "I

don't even know who the fuck you are." Parker then crossed his

arms in front of his chest. Parker also admits that he earlier

said, "Fuck you," to Caldwell as he was placing his hands on the

back of the truck.

Though Gerrish had already decided he would arrest Parker

regardless, Gerrish asked Parker to rate his own intoxication on a

ten point scale. Gerrish then attempted to physically uncross

Parker's arms and place him under arrest. Gerrish readied his

-4-
handcuffs while grabbing Parker's arm, which was still crossed in

front of his chest. Gerrish tried to move Parker's arm, but Parker

resisted. Parker testified that he didn't hear Gerrish at that

time as he was distracted by Caldwell.

Gerrish then stepped back, drew his Taser, and ordered

Parker to turn around and place his hands behind his back. Parker

complied, turned around, and clasped his right wrist with his left

hand. Gerrish handed his handcuffs to Caldwell, who had recently

entered the range of the video recorder. As Caldwell approached

Parker, Parker told Caldwell that he was not afraid of him.

Caldwell testified that he stepped back and was concerned there

would be a struggle. But Caldwell then proceeded to cuff Parker's

left wrist in two seconds. Caldwell then ordered Parker to release

his own clasped right wrist. At first, Parker did not comply.

Police Sergeant Todd Bernard, an officer who arrived on the scene,

and Caldwell testified that Parker was warned that he would be

"tased" if he did not comply. Parker testified that he never heard

a warning.

Caldwell then applied force to Parker's right hand in an

effort to get Parker to release his wrist. Since what happened

next is at the heart of the case, we will recount each witness's

perspective. Parker testified that at this point he released his

grip and was then shot with the Taser. Caldwell testified that

Parker let go of his right wrist, and then Parker's right hand

-5-
moved as if Parker was attempting to escape or attack. Caldwell

testified that he then grabbed the right arm. Gerrish testified

that he saw Parker's hand release, but the rest of Parker's right

arm was obscured by Caldwell. Nonetheless, Gerrish and Caldwell

both testified that Parker dipped his shoulder and began to swing

his right arm up. Gerrish testified that he saw Caldwell, "dip

forward and appear to come up on his tiptoes as if he was being

pulled off balance." At this point, Gerrish fired his Taser.

Gerrish did not verbally announce the use of his Taser as

is recommended. Caldwell was surprised by Gerrish's use of the

Taser. Caldwell testified that approximately one second elapsed

between when Parker released his grip and when Gerrish fired the

Taser. On cross examination, Gerrish agreed that nothing Parker

did prior to this instant "either in themselves or even in

collectivity" justified the use of the Taser. Rather, Gerrish

explained that he fired the Taser when he "saw a threat to Officer

Caldwell" and "reacted."

On cross examination, Parker conceded that he had

"resist[ed]" "physically but not mentally" Gerrish's attempts to

uncross his arms and was confused at the time since Caldwell was

also talking and telling him to turn back around. Parker further

testified that after placing his hands behind his back, he

"initially resisted" Caldwell's attempt to get him to release his

grip since he was not instructed how to place his hands and already

-6-
thought they were as close as they could get. Parker further

admitted that Caldwell told Parker he was resisting arrest and that

Caldwell was "prying my hands apart." Nonetheless, Parker

maintained that he then voluntarily released his hand, testifying,

"While he was prying I let go." He further testified that he was

shot with the Taser immediately after letting go.

The video recording reveals that approximately six

seconds elapsed between the cuffing of the left hand and the firing

of the Taser, during which time Caldwell was attempting to cuff

Parker's right hand. Though Parker's right arm is obscured behind

Caldwell in the video, Gerrish maintains on appeal that Parker's

"dramatic" move is evident from the video recording. But the video

recording shows only minimal movement by Parker at this key moment.

In fact, Caldwell admitted that the movement he described Parker

making just before he was shot with the Taser is not clearly

visible on the video. The video does show some movement by

Caldwell just before Gerrish fired the Taser. But, the video does

not clearly reveal a "dramatic" move by Parker before Gerrish fired

the Taser.

At the time that Gerrish fired the Taser, there were

three officers on the scene. Bernard arrived on the scene

approximately five to ten seconds before Gerrish fired the Taser.

Gerrish was aware of Bernard's presence before he fired his Taser.

-7-
Bernard also drew his Taser. Bernard did not fire his Taser, but

explained that he had assumed a backup role to that of Gerrish.

The parties did not dispute that Parker was unarmed and

never assaulted or attempted to assault the officers on the scene.

Gerrish also testified that Parker became increasingly frustrated

as the encounter progressed. Parker did not dispute that at times

he flexed his muscles and made gestures that were defiant.

Prior to the cuffing, Parker did not attempt to escape.

Nonetheless, the officers testified that when Parker moved his arm,

they feared that he was trying to escape and that he could fight

them using his handcuff as a weapon. As stated above, Parker

maintained he made no such move. Gerrish explained that physically

grappling with a resisting arrestee can be risky and dangerous and

that he deployed his Taser to prevent such a struggle.

Evidence adduced at trial showed that a Taser works by

firing two probes and transmitting a 50,000 volt charge for five

seconds. A Taser strike incapacitates by causing involuntary

muscle paralysis. In this case, the Taser probes attached to

Parker's left arm. The charge caused Parker to fall to the ground.

On the ground, Caldwell applied force to cuff Parker, pulling his

arms back and lifting his head up off the ground on two occasions.

During the cuffing on the ground, Parker felt a pain in his

shoulder. According to one of Parker's physicians, Dr. Elwood Fox,

Parker "sustained two injuries" as a result of the tasing incident:

-8-
"a radial nerve injury . . . that resulted in numbness to the left

thumb area" and "a full thickness rotator cuff tear to the left

shoulder." Gerrish questioned the cause of the rotator cuff tear,

noting that Parker had not initially complained about it and

arguing that any injury would have been caused by Caldwell's

cuffing procedure and not Gerrish's Taser discharge. But Dr. Fox

explained that such tears were usually caused by trauma and could

worsen over time. Parker testified as to his medical treatment as

well as to the pain he experienced during and after the incident.

Parker explained that being shot with the Taser made him feel like

he could not breathe. He testified, "I'd like to say it felt like

a bolt of lightning, but I've never been struck by a bolt of

lightning." Parker also missed some periods of work, though the

parties disputed the cause of the various absences.

At trial, the parties also elicited evidence regarding

police procedures. The South Portland Police Department trains its

officers in the use of the Taser,1 and lists the Taser just below

deadly force on its use of force continuum. Department policy

requires officers to use the least amount of reasonable force

necessary to take someone in to custody. When asked on cross

examination if having Bernard apply "soft hand control" to complete

1
During the training, Gerrish voluntarily submitted to being
"tased" for one second. Before being "tased," Gerrish signed a
release recognizing the risk of, among other things, uncontrolled
falls.

-9-
the cuffing should have been the first resort instead of the Taser,

Gerrish replied, "In a perfect world, yes, it would have been."

Gerrish later clarified that he viewed the Taser as appropriate

since soft hand control had failed and the Taser and other control

techniques existed to avoid a dangerous knock-down fight.

Parker also called an expert, John Ryan, a retired police

officer with experience in police training. Ryan rendered an

opinion that Gerrish's use of the Taser "was inconsistent with

generally established police practices." Ryan explained that in

assessing the physical threat, police officers normally take into

account whether a subject is armed, as well as the size and

relative number of officers compared to offenders. As was

undisputed at trial, Parker is 220 lbs, but Gerrish is larger.

Notably, Ryan testified that it is natural for an arrestee to move

while separating hands for cuffing. Ryan concluded that

"essentially the Taser is used because his arms move when he's

directed to move them." Ryan explained that officers regularly

have difficulty securing the second cuff, and that it is normal for

the arresting officer to bend down or dip his shoulder in the

process. Though Gerrish agreed that arrestees sometimes tense or

flinch while in the uncomfortable cuffing position, Gerrish

disputed Ryan's testimony that Caldwell's bending over to complete

cuffing was routine, stating he had only seen an officer in such a

position where an arrestee was resisting.

-10-
 Ryan also identified other considerations supporting his

opinion. Ryan testified that Parker appeared frustrated but

compliant. Ryan also noted that for much of the encounter, Gerrish

stood at ease, and not in what Ryan described as the "bladed

stance" that officers are taught to assume when they perceive a

threat. Gerrish later admitted that he would have assumed such a

stance had he perceived a threat. Ryan similarly noted that

Gerrish allowed Parker to put his hands in his pockets. Ryan

testified that an officer would not have allowed Parker to put his

hands in his pockets if he perceived Parker to be a likely threat.

The video tape and later testimony also revealed that Caldwell's

hands were in his pockets during the brief time from when he

entered the video camera's view until he was handed the handcuffs.

Gerrish did not call an expert.

B. Procedural History

Initially, Parker sued Gerrish, Caldwell, Bernard, the

City of South Portland, the South Portland Police Department, and

Edward Googins, the chief of police. Parker asserted claims

against Gerrish, Caldwell, and Bernard for negligence and use of

excessive force, in violation of 42 U.S.C. § 1983 and the Maine

Civil Rights Act. Parker asserted supervisory and municipal

liability under 42 U.S.C. § 1983 against the city, department, and

police chief.

-11-
 On the defendants' motion for summary judgment, the

district court found that the officers used reasonable force in

cuffing Parker after the Taser discharge. As such, the district

court ruled for Caldwell and Bernard on all claims against them.

Further finding no basis for municipal liability, the district

court granted summary judgment in favor of the supervisory

defendants. The district court refused to grant summary judgment

to Gerrish, finding a genuine dispute of material fact as to the

use of excessive force. The district court also denied Gerrish's

request for qualified immunity, finding that, construing facts in

the light most favorable to Parker, Gerrish may have unreasonably

violated a clearly established right by using excessive force

against Parker. Parker v. City of S. Portland, No. 06-129, 2007

U.S. Dist. LEXIS 37015, at *78-88 (D. Me. May 18, 2007).

After Gerrish testified at trial that he intentionally

deployed the Taser, Parker orally dismissed his negligence claim.

Thus, the case went to the jury only on Parker's state and federal

excessive force claims against Gerrish.

At the close of plaintiff's case, Gerrish orally moved

for a judgment as a matter of law under Fed. R. Civ. P. 50(a).

Though the motion did not refer to "qualified immunity" or to

"clearly established law," Gerrish contends he adequately raised

that issue. The district court denied Gerrish's motion and denied

a renewed motion at the close of evidence.

-12-
 After closing arguments, the district court instructed

the jury. No party objected as the judge instructed the jury on

legal causation, multiple causation, and independent intervening

events. After deliberation, the jury returned with a written

question:

The plaintiff testified the shoulder popped as
a result of the officer's actions after the
tasing. Gerrish did not appear to be around
Parker after he fell to the ground.
Therefore, is Gerrish responsible for the
injuries to the plaintiff as a result of the
incident on the ground?

After consulting with the litigants, the district court judge

replied in writing:

Members of the jury: the Court cannot provide
you with an answer to the question you ask.
You must first decide by applying my
instructions on the law to the facts as you
find them whether Mr. Parker has proven by a
preponderance of the evidence that the
defendant's use of the Taser device
constituted unconstitutionally excessive
force. If and only if your answer to that
question is "yes," you must then decide
whether any injuries you find Mr. Parker
sustained were legally caused by Officer
Gerrish's use of the Taser device, again by
applying the instructions I have given you on
causation and otherwise. My instructions on
causation appear on pages 8 and 9 of the
instructions.

Gerrish lodged an objection to this response. He argued that by

virtue of Caldwell and Bernard's dismissal on summary judgment, the

district court should have instructed the jury that Gerrish could

-13-
not be liable for injuries caused by Caldwell or Bernard while

Parker was on the ground.

The jury returned with a verdict for Parker and awarded

compensatory damages of $111,000. Gerrish then moved for judgment

as a matter of law under Fed. R. Civ. P. 50(b) arguing that there

was no excessive force and that Gerrish is entitled to qualified

immunity. In the alternative, Gerrish requested a new trial under

Fed. R. Civ. P. 59, challenging the response to the jury question.

The district court denied both motions. Gerrish now appeals this

denial.

II. Discussion

A. Excessive Force

In reviewing decisions on motions for judgment as a

matter of law, we "review questions of law de novo, but review the

sufficiency of the evidence drawing all reasonable inferences in

favor of the prevailing party." Negrón v. Caleb Brett U.S.A.,

Inc., 212 F.3d 666, 668 (1st Cir. 2000). "Our review is weighted

toward preservation of the jury verdict; 'we must affirm unless the

evidence was 'so strongly and overwhelmingly' inconsistent with the

verdict[] that no reasonable jury could have returned [it].'"

Rodowicz v. Mass. Mut. Life Ins. Co., 279 F.3d 36, 42 (1st Cir.

2002) (quoting Walton v. Nalco Chem. Co., 272 F.3d 13, 23 (1st Cir.

2001)). "We cannot evaluate 'the credibility of witnesses, resolve

conflicts in testimony, or evaluate the weight of evidence,' and we

-14-
must affirm unless 'the evidence, viewed from the perspective most

favorable to the nonmovant, is so one-sided that the movant is

plainly entitled to judgment, for reasonable minds could not differ

as to the outcome.'" Criado v. IBM Corp., 145 F.3d 437, 441 (1st

Cir. 1998) (quoting Gibson v. City of Cranston, 37 F.3d 731, 735

(1st Cir. 1994)).

The standard for assessing claims of excessive force is

established:

To establish a Fourth Amendment violation
based on excessive force, a plaintiff must
show that the defendant officer employed force
that was unreasonable under the circumstances.
Whether the force used to effect a particular
seizure is reasonable "must be judged from the
perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of
hindsight." The reasonableness inquiry is
objective, to be determined "in light of the
facts and circumstances confronting [the
officers], without regard to their underlying
intent or motivation." There must be "careful
attention to the facts and circumstances of
each particular case, including the severity
of the crime at issue, whether the suspect
poses an immediate threat to the safety of the
officers or others, and whether he is actively
resisting arrest or attempting to evade arrest
by flight."

Jennings, 499 F.3d at 11 (quoting Graham v. Connor, 490 U.S. 386,

396-97 (1989)) (citations omitted). We have also noted that the

"'calculus of reasonableness' must make 'allowance' for the need of

police officers '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.'" Berube v.

-15-
Conley, 506 F.3d 79, 83 (1st Cir. 2007) (quoting Roy v. Inhabitants

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

The use of expert testimony is permissible in assisting

the jury in evaluating claims of excessive force. See Jennings,

499 F.3d at 15 (explaining that while such testimony is neither

required nor always appropriate, expert testimony can be helpful to

jurors in explaining police control techniques unfamiliar to many

jurors).

Here, the facts and circumstances identified in Jennings

and Graham support the jury's conclusion that Gerrish's use of the

Taser was not reasonable under the circumstances. First, the

seriousness of the offense weighs in favor of Parker. Though

driving while intoxicated is a serious offense, it does not present

a risk of danger to the arresting officer that is presented when an

officer confronts a suspect engaged in an offense like robbery or

assault. Cf. Begay v. United States, 128 S. Ct. 1581, 1586 (2008)

(finding DUI not to be a crime of violence under the Armed Career

Criminal Act, noting that it is not defined by "violent, and

aggressive conduct" (internal quotations marks omitted)). Further,

since Parker complied with Gerrish's requests and exited the

vehicle voluntarily, he no longer posed a threat of driving while

intoxicated.

Though the offense of resisting arrest could certainly

pose a risk to an arresting officer, the evidence presented to the

-16-
jury could allow it to find that Parker was not meaningfully

engaged in this offense. First, Parker testified that he

voluntarily released his hands. Second, as police expert Ryan

testified, officers routinely encounter difficulty getting suspects

to align their hands for cuffing.

Even to the extent Parker initially resisted releasing

his hands for cuffing, a jury could find this resistance de minimis

in light of the circumstances. Caldwell's attempt to get Parker to

release his hand lasted only a few seconds. Parker testified that

he released his hand and was then immediately shot with the Taser.

Gerrish and Caldwell testified that Parker made a "dramatic" move,

which pulled Caldwell off balance, leading them to fear an attack

or attempted escape. But, considering Parker's testimony, the

videotape, and police expert Ryan's testimony that Caldwell's

repositioning during cuffing was routine, a reasonable jury could

conclude that Parker made no "dramatic" threatening move. Thus,

the evidence supports the conclusion that Parker was not engaging

in a serious offense which itself would justify the use of force.

Gerrish urges us to ignore Parker's testimony and focus

on the videotape. He argues that the Supreme Court has permitted

such a change in the standard of review by holding that at summary

judgment, a court may ignore a visible fiction in testimony and

instead "view[] the facts in the light depicted by the videotape."

Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). Even if this

-17-
proposition applied when reviewing a motion for judgment as a

matter of law, a proposition we need not reach, it would not help

Gerrish here. As noted above, we do not view the video recording

in this case as depicting significant resistance. Considering the

video recording together with the testimony, the jury could

reasonably find excessive force.

As to the second Graham factor, the jury could reasonably

have concluded that Parker did not pose an immediate threat to the

safety of the officers. Gerrish contends that he had only a second

to evaluate Parker's arm movement and decide that Caldwell was

threatened. We allow for an officer's need to make calculations in

rapidly evolving circumstances, but here the seven minute encounter

demonstrated that Parker was largely compliant. The officers did

not treat Parker as a threat during the encounter. And as

explained above, a jury could have concluded that Parker simply

released his hand and did not raise his arm as Caldwell was cuffing

him.

That Parker was earlier insolent or frustrated does not

change this conclusion. As Gerrish acknowledged, a reasonable

officer would not discharge his Taser simply because of insolence.

We do consider the totality of the circumstances in assessing the

reasonableness of the use of force. In some circumstances,

defiance and insolence might reasonably be seen as a factor which

suggests a threat to the officer. But here Parker was largely

-18-
compliant and twice gave himself up for arrest to the officers.

Further, as Gerrish admitted, that Parker earlier harassed or

resisted the officers does not justify the later use of the Taser.

Cf. Jennings, 499 F.3d at 14-15 (finding a use of force

unreasonable where an officer "increased the force he used after

[the arrestee] ceased resisting"). Considering all of this

evidence, the jury could reasonably have concluded that Parker did

not pose an immediate threat.

Finally, as explained above, a jury could have found that

Parker was not actively resisting or attempting to flee. Gerrish

points to Parker's admission on cross examination that he

"resisted" Gerrish's attempt to uncross his arms and Caldwell's

initial attempts to get him to release his grasp on his own wrist.

Against this admission the jury could have considered Parker's

general compliance, the shortness of the time during which Parker

did not position his arms as the officers desired, and the expert

testimony that difficulty in securing cuffs was routine. The jury

could reasonably have concluded that under such circumstances,

Parker presented no significant "active resistance" or threat.

When considering whether it was reasonable for Gerrish to

fire his Taser in light of these facts, the jury could turn to

testimony about the strong incapacitating effect of the Taser and

the fact that the South Portland Police Department considered the

Taser just below deadly force in its "continuum" of force. See id.

-19-
at 14-15 (explaining that testimony about the use of force

continuum can properly inform the jury about the proportionality of

force needed under the circumstances). Gerrish contends that the

use of the Taser was proper as Parker did not respond to his "soft

hand control." But since the jury could have found that Parker

simply released his hand and made no "dramatic" threat, the jury

could have concluded that "soft hand control" had not failed. We

do not hold that the officers would have been required to

physically wrestle Parker to the ground without recourse to the

Taser. Rather, we find that the jury could have concluded that

such a struggle would not have been necessary -- that in the

absence of the Taser, Parker would have submitted to cuffing

without presenting a risk to the officers.

Thus, it was not unreasonable for the jury to find

Gerrish's use of the Taser to be excessive. Gerrish suggests that

precedent precludes such a conclusion. First, he points to our

recent decision in Berube, where we granted qualified immunity to

police officers who repeatedly shot an attacker wielding a metal

hammer, which some officers suspected was a gun. 506 F.3d at 84-

85. Gerrish argues that that decision recognizes the discretion we

afford officers responding to evolving threats. But, there, the

first officer "was confronted by a much larger man charging her

with what he has conceded was a dangerous weapon in his hand." Id.

The later arriving officers in that case faced an arrestee who was

-20-
"rolling on the ground, refusing to obey their orders and

potentially preparing to fire at them." Id. Thus, the situation

in Berube required the officers to make instant judgments about an

unfamiliar arrestee who was armed and apparently threatening them.

In contrast, Parker largely complied with Gerrish's request for

seven minutes, was unarmed, and did not pose an immediate threat.

Gerrish next compares this case to Draper v. Reynolds,

where the Eleventh Circuit held that an officer, Reynolds,

reasonably fired his Taser at a stopped driver, Draper, who yelled

profanities at the police officer, repeatedly and defiantly

challenged the officer's commands, and failed to produce his

license and other documents after five requests. 369 F.3d 1270,

1278 (11th Cir. 2004). In that case, "[f]rom the time Draper met

Reynolds at the back of the truck, Draper was hostile, belligerent,

and uncooperative." Id. Draper "repeatedly refused to comply with

Reynolds's verbal comments." Id. Considering the persistent

hostility, the court found that attempting an arrest and cuffing

"may well have, or would likely have, escalated a tense and

difficult situation into a serious physical struggle." Id. As we

have explained, this is a different case. Though Parker insulted

the officers, he complied with Gerrish's requests and gave himself

up for arrest. A reasonable jury could have found no likelihood of

a serious physical struggle.

-21-
 Accordingly, we find that the evidence in this case

supports the jury's finding that Gerrish used excessive force when

he fired his Taser at Parker.

B. Qualified Immunity

Gerrish contends, in the alternative, that his decision

to fire the Taser was at worst a reasonable mistake in judgment for

which he should receive qualified immunity. Parker contends that

Gerrish waived this defense by failing to raise it in his Rule

50(a) motion.2

2
Gerrish's counsel's oral Fed. R. Civ. P. 50(a) motion in its
entirety is as follows:

Your Honor, at this point I'd like to make my
motion under Rule 50 for judgment as a matter
of law.

I think the -- two separate issue in here,
first, whether or not the plaintiff has made
out an actual violation of the Fourth
Amendment on unreasonable use of force.
Obviously the Taser itself has not been
declared by any Court as a per se
unconstitutional use of force. And so I think
that the issue is was the force used to
overcome what Officer Gerrish perceived as
physical resistance and a threat to Officer
Caldwell unconstitutional and unreasonable and
excessive.

I think that Mr. Parker himself in his
testimony admitted that he resisted, that he
resisted the first attempts to take him into
custody, and that just before he was tased
that -- that he did not willingly give up his
hands, that his hands had to be pried apart by
Officer Caldwell and that at that point in
time it's not just what is actually happening
but what Mr. -- I'm sorry, what Officer

-22-
 A motion under Fed. R. Civ. P. 50(a) must "specify the

judgment sought and the law and facts that entitle the movant to

the judgment." Fed. R. Civ. P. 50(a)(2). The motion "must be

sufficiently specific so as to apprise the district court of the

grounds relied on in support of the motion." Zachar v. Lee, 363

F.3d 70, 73 (1st Cir. 2004) (citing Correa v. Hosp. San Francisco,

69 F.3d 1184, 1196 (1st Cir. 1995)). Such a motion "preserves for

review only those grounds specified at the time, and no others."

Id. (quoting Correa, 69 F.3d at 1196). In this appeal we review

the district's denial of Gerrish's renewed motion for judgment as

Gerrish and any objectively reasonable officer
in his position would have perceived as a
threat, and the thought was lawful in response
to it. So I think that Mr. Parker's own
testimony about his resistance defeats the
Fourth Amendment claim.

I think that what you can see on the video and
what any reasonable juror would have to see is
the reaction of Officer Caldwell. And taken
in conjunction with Mr. Parker's testimony
that he was not giving up his hands and that
they were having to be pried apart and then
the reaction that you can clearly see on the
video in the second before he's tased when --
when Officer Caldwell's body shifts
dramatically and takes a dip and pushes
forward, that at that point that an
objectively reasonable officer in Officer
Gerrish's position and under the totality of
the circumstances of all he's seen up to this
point in time could reasonably have inferred
that there was a threat to Officer Caldwell,
that he was resisting being taken into
custody, and it justified the use of the Taser
to overcome that resistance.

-23-
a matter of law under Fed. R. Civ. P. 50(b). But, "[a]s the name

implies, a renewed motion for judgment as a matter of law under

Fed. R. Civ. P. 50(b) is bounded by the movant's earlier Rule 50(a)

motion." Correa, 69 F.3d at 1196. "The movant cannot use such a

motion as a vehicle to introduce a legal theory not distinctly

articulated in its close-of-evidence motion for a directed

verdict." Id. Consistent with this general framework, we have

held that even if a defendant raises qualified immunity at summary

judgment, the issue is waived on appeal if not pressed in a Rule

50(a) motion. Isom v. Town of Warren, 360 F.3d 7, 9 (1st Cir.

2004) ("But the defendants did not raise immunity as an issue at

the time of their Rule 50 motion, and so they have waived that

defense as a grounds for the motion.").

Gerrish does not dispute this proposition, but rather

argues that he did raise qualified immunity in his motion under

Fed. R. Civ. P. 50(a). Gerrish admits that the oral motion did not

use the term "qualified immunity," but argues that he addressed

every prong of the qualified immunity analysis.

We assess qualified immunity using a three-part test:

"'whether the plaintiff's allegations, if true, establish a

constitutional violation,' 'whether the right was clearly

established at the time of the alleged violation,' and 'whether a

reasonable officer, similarly situated, would understand that the

challenged conduct violated that established right.'" Philip v.

-24-
Cronin, 537 F.3d 26, 34 (1st Cir. 2008) (quoting Suboh v. Dist.

Attorney's Office, 298 F.3d 81, 90 (1st Cir. 2002)).

Gerrish contends that he dealt with the first prong of

the qualified immunity analysis, whether there was a constitutional

violation, while discussing the excessive force issue. While it is

true that Gerrish argued that there was no constitutional

violation, he argued only that issue and did not place it in the

context of a qualified immunity argument.

Gerrish next points to his argument that "the Taser

itself has not been declared by any court as a per se

unconstitutional use of force." Gerrish contends that argument

invoked the second prong of the qualified immunity analysis,

whether his actions violated "clearly established" law. But this

argument was made entirely in the context of an argument that there

was no unconstitutional use of force. Gerrish did not refer to

"clearly established law" and made no effort to address his

argument to qualified immunity.

Similarly, Gerrish contends that he addressed the third

prong of the qualified immunity analysis, whether a reasonable

officer would have known that his conduct was unlawful, when he

argued that "an objectively reasonable officer in Officer Gerrish's

position" would have seen Parker's arm movement as a threat to

Caldwell justifying the Taser usage. But, as noted above, the

excessive force analysis is also keyed to the perceptions of an

-25-
objectively reasonable officer. Thus, Gerrish's discussion is

again simply addressed to the argument that Gerrish did not use

excessive force.

In this way, the oral Rule 50(a) motion only argued that

the evidence was insufficient to support a finding of a

constitutional violation. Though Gerrish stated that there were

two issues, he only argued the excessive force issue. Gerrish did

not specify qualified immunity as the legal basis for his motion or

give the district court judge adequate notice that he was renewing

that claim in this context. See United States v. Samboy, 433 F.3d

154, 161 (1st Cir. 2005)("To raise an argument on appeal, a party

must 'spell out its arguments squarely and distinctly . . . or else

forever hold its peace.'" (quoting Rivera-Gómez v. de Castro, 843

F.2d 631, 635 (1st Cir. 1988))). Accordingly, his qualified

immunity defense is waived.

Though we have discretion "to relieve a party from the

normal consequences of failure to proffer a defense" in a timely

manner, we do so only to prevent a "miscarriage of justice" where

"error is plain" and the equities heavily favor correcting that

error. Correa, 69 F.3d at 1196. We need not conduct a detailed

examination of the waived qualified immunity arguments to conclude

that no such circumstances are presented here.

-26-
 C. Causation and Damages

Gerrish also appeals the district court's denial of his

request for a new trial. Specifically, Gerrish argues that the

district court erred in responding to the jury's question.

According to Gerrish, this error impermissibly allowed the jury's

damage award to include injury caused by Caldwell's cuffing of

Parker after he was shot with the Taser and fell to the ground.

"In reviewing an award of damages, the district court is

obliged to review the evidence in the light most favorable to the

prevailing party and to grant remittitur or a new trial on damages

only when the award 'exceeds any rational appraisal or estimate of

the damages that could be based upon the evidence before it.'"

Baron v. Suffolk County Sheriff's Dep't, 402 F.3d 225, 245 (1st

Cir. 2005) (quoting E. Mountain Platform Tennis, Inc. v.

Sherwin-Williams Co., 40 F.3d 492, 502 (1st Cir. 1994)). After a

mid-deliberation jury question, the decision "whether to provide a

supplementary instruction to the jury 'is a matter within the sound

discretion of the trial court.'" United States v. Roberson, 459

F.3d 39, 46 (1st Cir. 2006) (quoting Elliott v. S.D. Warren Co.,

134 F.3d 1, 7 (1st Cir. 1998)). Where "the phrasing of the jury

question" "suggested that the jury was putting it to the court to

make the dispositive decision," we "cannot fault the court for

choosing the more cautious alternative of re-reading the original

instruction and letting that instruction stand alone." Id.

-27-
 In this case, the district court simply directed the jury

back to the earlier causation instructions to which the defendant

had not objected. Among other things, these instructions explained

that the jury should not award damages for an injury if it found

"that the defendant has proven by a preponderance of the evidence

that the injury or damage to the plaintiff was caused by a

subsequent independent intervening event." Of course, we do not

know exactly how the jury ultimately determined what damages were

caused by Officer Gerrish's use of the Taser. Nonetheless, we see

no basis for concluding that the ultimate damages figure was

irrational.

Gerrish's main argument is simply that since Caldwell and

Bernard were granted summary judgment for the cuffing, it is

improper to allow Parker to recover for his shoulder injury. But

this argument assumes the cuffing was the sole cause of the injury.

Gerrish, however, did not seek or obtain summary judgment to that

effect. Therefore, this causation question was properly a matter

for the jury. See Napier v. F/V Deesie, Inc., 454 F.3d 61, 69 (1st

Cir. 2006) ("The issues of foreseeability and superseding cause are

properly for the jury to decide when there may be reasonable

differences in opinion."). In its answer to the jury's question,

the district court properly left the matter in the jury's hands by

making clear that the jury should only award damages to Parker

-28-
where they determined Gerrish's use of the Taser was the legal

cause of the injury.

Furthermore, we cannot conclude that the jury acted

irrationally in assessing causation. Considering testimony that a

Taser discharge causes involuntary muscle paralysis and

uncontrolled falls, the jury might have concluded that the Taser,

combined with the subsequent cuffing, was a proximate cause of any

rotator cuff injuries. In other words, the jury might have found

that the defendant did not meet his burden of showing an

independent intervening event. That Parker testified he first felt

shoulder pain during cuffing does not establish that the paralysis

and fall did not contribute to the injury. Additionally, Parker's

doctor gave his opinion that both injuries were the result of the

"tasing incident." Gerrish did not call his own medical expert and

has not pointed to any basis in the record which compels a finding

that such a causation conclusion would be irrational.

Gerrish argued his position on causation to the jury, and

the jury could reasonably have rejected his argument. In sum, we

conclude that Gerrish was not entitled to have the district court

rule out Gerrish as a cause of the shoulder injury.3

3
Furthermore, it is even possible that the jury found that
Gerrish was not responsible for the shoulder injury and awarded
$111,000 just for the nerve damage. Parker described the pain
inherent in being shot with a Taser and reported persistent
numbness in his thumb. A medical expert confirmed nerve damage to
Parker's arm and delivered an expert opinion that the Taser was the
cause of that injury. We are unable to say, on this record, that

-29-
 III. Conclusion

For the foregoing reasons, we affirm the district court's

denial of Gerrish's post-trial motions and the judgment in favor of

Parker.

Affirmed.

$111,000 is an irrationally large award for such injury and pain.

-30-