Jennings v. Jones

United States Court of Appeals
For the First Circuit

No. 08-2117

ADAM JENNINGS,

Plaintiff, Appellant,

v.

KENNETH JONES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Lynch, Chief Judge,
*
Gajarsa and Lipez, Circuit Judges.

Charles M. Bradley for appellant.
Rebecca Tedford Partington, Deputy Chief, Civil Division,
with whom John Moreira, Special Assistant Attorney General, was
on brief for appellee.

November 19, 2009

*
Of the Federal Circuit, sitting by designation.
 LYNCH, Chief Judge. In the second appearance of this

case here, the question is whether the trial court abused its

discretion in granting a motion for a new trial, after a remand

from this court instructing the trial court to address the motion.

Jennings v. Jones (Jennings II), 499 F.3d 1 (1st Cir. 2007). There

was no abuse of discretion and we affirm.

I.

Plaintiff Adam Jennings, an employee of a Narragansett

Indian Tribe "smoke shop" in Charlestown, Rhode Island, and others

brought a civil rights action in December 2003 against the state of

Rhode Island and a State Police representative, as well as unnamed

State Police officers who had executed a search warrant at the

shop. The tribal shop was suspected of illegally selling tax-free

tobacco products. During the course of the operation, these

officers had attempted to arrest Jennings for disorderly conduct;

Jennings resisted, and in the ensuing confrontation, his ankle was

broken. The original complaint included a Fourth Amendment

excessive force claim against a number of John Doe defendants.

After the close of discovery and shortly before the deadline for

filing pretrial motions, seven state troopers, including Officer

Kenneth Jones, were added as defendants in their individual

capacities.

On March 21, 2005, just before the trial began,

plaintiffs filed a second amended complaint that raised twenty-one

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different claims, including discrimination, various state law

claims of assault, battery, false imprisonment, and negligent and

intentional infliction of emotional distress, and again the

excessive force claim.1

In 2005, a jury found for Jennings on only one of his

claims and against only one of the defendants. On his excessive

force and battery claims, the jury found only against Officer

Jones, awarding Jennings $301,100 in compensatory damages. Jones

filed motions for judgment as a matter of law (JMOL), for a new

trial, and for a remittitur. The district court granted Jones's

motion for JMOL on the basis of qualified immunity. Jennings v.

Pare (Jennings I), No. 03-572, 2005 WL 2043945 (D.R.I. Aug. 24,

2005). It erroneously failed to rule, however, on the defendant's

Fed. R. Civ. P. 50(c)(1) motion for new trial, which it had found

to be moot.

Jennings appealed from the JMOL. In 2007, a divided

panel of this court, in a modified decision reached after en banc

review was sought, vacated the district court's ruling on the

motion for JMOL and remanded to the district court to rule on the

outstanding motions. Jennings II, 499 F.3d 1. In the order

denying en banc review, two judges expressed the view that the

1
Aside from Jennings's excessive force and battery claims
against Jones, all other claims were resolved in favor of the
defendants, either on motions for judgment as a matter of law
(JMOL) or by the jury in its final verdict.

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motion for new trial was well taken and two expressed the view that

the new trial motion was best left to the discretion of the trial

judge. Id. at 1-2 (Boudin, C.J. and Lynch, J. concurring in the

denial of rehearing en banc); id. at 2 (Torruella, J. and Lipez, J.

concurring in the denial of rehearing en banc).

In 2008, after hearing arguments, the district court

granted Jones's motion for a new trial on two grounds. Jennings v.

Pare (Jennings III), No. 03-572, 2008 WL 2202429 (D.R.I. May 27,

2008). The district judge first held that a new trial was

warranted because it was impossible to determine whether the jury's

verdict had been based on a theory of excessive force that would

not have been barred by qualified immunity. Id. at *2-3.

As a second, independent basis for granting the new

trial, the trial judge also held that a verdict based on a theory

of increased force, even if that were a possible ground for the

verdict, would have been against the clear weight of the credible

evidence. Id. at *3-4. The district court weighed the testimony

of the two witnesses who claimed to have seen Jones increase force

on Jennings's ankle against objective evidence and found, for

several reasons, that neither of them could have observed what they

testified to seeing. The judge also determined that Jennings's

testimony was not credible on the claim of increased force, because

it was plainly contradicted by other evidence. There was no other

evidence available by which a jury might have determined that Jones

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had increased the force he applied to Jennings's ankle; and the

district judge deemed Jones's testimony that there had been no

increase in pressure credible. Thus, he granted the motion for new

trial.

At the second trial, held in 2008, the jury ruled in favor of

Jones. Jennings appealed from the grant of the new trial motion.

We now affirm.

II.

The facts of the case are recited at length in this

court's previous opinion, Jennings II, 499 F.3d at 4-7, and in the

district court's JMOL order, Jennings I, 2005 WL 2043945, at *1-2.

We describe the history of the case.

In his pleadings and at his first trial, Jennings

presented several different arguments and theories to support his

Fourth Amendment excessive force claim against various defendants.

His second amended complaint described the claim as follows:

Kenneth Bell, Kenneth Jones, Wilfred Hill, James
Demers, and Kenneth Buonaiuto, still failing to
identify themselves as . . . Rhode Island State
Police Officer[s] or producing any documentation
supporting [their] alleged right to be on the
property, assaulted Adam Jennings and subdued him
in violation of his right under the Fourth
Amendment . . . to be free from excessive force . .
. .
. . . .
The actions of defendants in wrestling Adam
Jennings to the floor and applying the weight of
several officers to his person and breaking his
ankle were a violation of Mr. Jennings['s] right
under the Fourth Amendment . . . to be free from
the use of excessive force.

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The amended complaint did not focus on Jones as opposed to the

other officers and claimed that the excessive force consisted of

wrestling plaintiff to the floor, applying the weight of several

officers to him, and breaking his ankle. Consistent with these

generalized allegations, Jennings argued at various points during

the trial and during his opening and closing arguments that the

force used against him was excessive for a number of different

reasons.2

2
Jennings consistently urged that (1) Jones's actions
constituted excessive force because the seriousness of the injury
was not justified by the gravity of Jennings's purportedly minor
offense. At closing argument, Jennings's attorney stated: "If, in
fact, there was any serious behavior on the part of Adam Jennings
that justified the end result of breaking his ankle in two places,
I don't know what it is." He also told the jury that if Jennings's
behavior before his arrest "was a crime, it wasn't a very serious
crime," and "if there is a serious injury, a serious physical
injury, you can take that into consideration when you're
considering whether the force is excessive or not."
Further, Jennings argued at trial that (2) the force used
against him was excessive because he should not have been arrested
in the first place. Jennings testified that he in fact complied
with all the officers' directions at every stage (though both
videotape evidence and testimony from officers flatly contradicted
this). Jennings's attorney restated this point during both opening
and closing arguments.
Jennings also argued throughout the trial that (3) the force
used was excessive because Jones continued to use the ankle
technique even after Jennings claimed he stopped resisting.
Pointing to a videotape of the encounter as evidence, Jennings
argued that after he was taken to the ground and Jones started
using the ankle technique, Jones "holds that position for quite
some time, even when it is clear from the video that there is no
longer any struggling going on." He added during closing argument
that "obviously at the point that Trooper Hill gets up, that in and
of itself is an announcement that there isn't anything going on
down on the floor that is worthy of any kind of very serious
application of force."
Jennings further claimed excessive force on the grounds that,

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 In addition to the arguments outlined in footnote two,

Jennings pressed another theory at various points: that the force

was excessive because Jones had increased the force he applied to

the ankle without justification after Jennings had stopped

resisting and after he had informed Jones of his prior injury to

that ankle.

The district court gave the jury generalized instructions

on Jennings's excessive force claim.3 It instructed the jury on

the elements of a § 1983 claim; it stated that use of excessive

force was an unreasonable seizure under the Fourth Amendment and

that to establish excessive force, "the plaintiff must show that

the force used was objectively unreasonable." The court further

instructed the jury on several factors it could consider in

(4) faced with strange men whom he believed were robbing the shop
and harassing his mother, his initial, obstructive behavior had
been justified.
3
At the close of the plaintiff's presentation at trial,
the defendants moved for JMOL on the basis of defenses, which
included qualified immunity. This was the first time the qualified
immunity defense was raised; the defendants explained that it was
not raised earlier because Jones and the other officers were not
named as defendants until after the parties had filed their
pretrial motions. The district court granted the motion in part
but denied it as to Jennings's excessive force and battery claims
against Jones. The court apparently overlooked the immunity issue,
which it did not explicitly address.
After the close of all evidence, defendants renewed their
motion for JMOL, but did not explicitly renew their qualified
immunity argument. The district court again granted the motion in
part but denied it as to the excessive force and battery claims
against Jones; again, the court did not address the qualified
immunity defense.

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determining whether the force used was objectively reasonable.

These factors were: whether the plaintiff posed a threat to the

safety of the officer or others and how immediate or serious the

threat was, whether the plaintiff was interfering with or

disrupting the search, whether the plaintiff was resisting, and

whether the force used was proportional under the circumstances.

The jury instructions did not distinguish among the multiple

theories that Jennings provided at trial for his excessive force

claim, nor did they mention the increased force theory. Jennings

also did not request that the jury instructions be more specific in

this regard.

On March 28, 2005, the first jury returned a verdict in

favor of Jennings on both his excessive force and state law battery

claims against Jones but did not find liability on the part of the

other defendants. It awarded Jennings $301,100 in compensatory

damages. The jury verdict stated only: "As to the claims by Adam

Jennings against Kenneth Jones, Fourth Amendment claim for

excessive force, the jury finds for the plaintiff, Adam Jennings."

There were no special interrogatories to allow the jury to make

specific findings of fact. Neither party had requested them and

neither objected to the verdict form.

On April 8, 2005, after the verdict was issued, Jones

filed three motions, seeking a remittitur under Fed. R. Civ. P.

59(e), JMOL under Fed. R. Civ. P. 50(b), and a new trial under Fed.

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R. Civ. P. 59. On August 24, 2005, the district court granted

Jones's motion for JMOL, stating that it had erred by not granting

JMOL previously and by submitting the claims to the jury. Jennings

I, 2005 WL 2043945, at *5. The trial judge concluded that Jones

was entitled to qualified immunity, reasoning that there was no

evidence that Jones's actions constituted excessive force and, even

if such evidence had been presented, there was no clearly

established law on point and a reasonable officer could have

believed his actions lawful.4 Id. at *5-11. The district court

incorrectly did not rule on the new trial or remittitur motions on

the ground that these motions were moot in light of its decision on

JMOL. Id. at *1.

On August 17, 2007, a panel of this court, over a

dissent, vacated the district court's ruling granting JMOL on

immunity grounds on Jennings's excessive force claim.5 Viewing the

evidence in the light most favorable to Jennings, and so taking all

credibility issues in Jennings's favor, the court found the

evidence sufficient to support a claim based on "Jones' increased

use of physical force after Jennings had ceased resisting for

several seconds and stated that the force Jones was using was

4
The court also concluded that under Rhode Island law,
Jones was shielded from liability for the state law battery claim.
Id. at *11–13.
5
The decision did not disturb the district court's grant
of JMOL on Jennings's state law battery claim, which Jennings had
not challenged on appeal. Jennings II, 499 F.3d at 7 n.8.

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hurting his previously injured ankle." Jennings II, 499 F.3d at 11

(emphasis in original); see also id. at 7.

It additionally noted that the "circumstances would

arguably allow a reasonable officer in Jones' circumstances to

believe that it was lawful to maintain the level of force he used

even after Jones ceased resisting," and thus that Jones may have

been entitled to immunity on that claim. Id. at 19 (emphasis in

original). The court also concluded that the district judge erred

in not ruling on Jones's motions for a new trial and for remittitur

and remanded for a ruling on these motions. Id. at 21.

On remand, the district court granted Jones's new trial

motion on two different grounds. On May 27, 2008, it ruled that a

new trial was warranted because there was no way to determine

whether the jury's general verdict was based on the increased force

theory or on one of the other excessive force theories Jennings

argued to the jury. Jennings III, 2008 WL 2202429, at *2-3. The

court separately ruled that even if the first jury's decision was

based on the increased force theory, this conclusion was contrary

to the weight of the evidence, and a new trial would be warranted

on that ground. Id. at *3-4. The court found that the weight of

the credible evidence instead "support[ed] Jones's testimony that

he maintained his hold on Jennings' ankle because Jennings

continued to resist but that he did not increase the force being

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exerted."6 Id. at *4. We outline the district court's reasoning

more precisely below.

The second trial began on July 22, 2008. This time, the

jury found in Jones's favor. After the verdict was issued,

Jennings timely appealed from the grant of the new trial motion,

seeking to reinstate the verdict in the first trial.

III.

Our review of the grant of a motion for a new trial is

for abuse of discretion. Gasperini v. Ctr. for Humanities, Inc.,

518 U.S. 415, 435 (1996).

A. There Are Distinct Standards under Rules 59 and 50, Fed.
R. Civ. P.

The prior appeal involved a grant of a Rule 50 motion for

JMOL; this appeal involves a grant of a Rule 59 new trial motion.

The perspectives that both the trial judge and the appellate court

must take on such motions differ in several respects.

Under Rule 50, the standard for a trial judge to grant a

JMOL is whether the jury "would not have a legally sufficient

evidentiary basis" for its verdict. Fed. R. Civ. P. 50(a). By

contrast, in assessing a new trial motion under Rule 59, a trial

judge asks whether there is a ground on which "a new trial has

heretofore been granted in an action at law in federal court."

6
Had the verdict been based on a maintenance of force
theory, the panel opinion in Jennings II conceded that it was
arguable Jones was entitled to qualified immunity. Jennings II,
499 F.3d at 11-12.

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Fed. R. Civ. P. 59(a)(1)(A). A district court's power to grant a

motion for a new trial is much broader than its power to grant a

JMOL. See Sailor Inc. F/V v. City of Rockland, 428 F.3d 348, 353

(1st Cir. 2005); 3 Charles A. Wright, Federal Practice and

Procedure § 553, at 245 (2d ed. 1982).

A trial court may grant a new trial on the basis that the

verdict is against the weight of the evidence. See Gasperini, 518

U.S. at 433. Further, "the district court has the power and duty

to order a new trial whenever, in its judgment, the action is

required in order to prevent injustice." Kearns v. Keystone

Shipping Co., 863 F.2d 177, 181 (1st Cir. 1988) (quoting 11 C.

Wright & A. Miller, Federal Practice and Procedure § 2805 (1973))

(internal quotation marks omitted). When deciding whether to grant

a new trial, a district court is free to independently weigh the

evidence. MacQuarrie v. Howard Johnson Co., 877 F.2d 126, 132 (1st

Cir. 1989) ("The trial judge, upon considering a motion for new

trial, may consider the credibility of the witnesses who had

testified and, of course, will consider the weight of the

evidence."); Mayo v. Schooner Capital Corp., 825 F.2d 566, 569-70

(1st Cir. 1987); Ins. Co. of N. Am. v. Musa, 785 F.2d 370, 375 (1st

Cir. 1986); see also 11 Wright, Miller & Kane, Federal Practice and

Procedure § 2806, at 67 (2d ed. 1995) ("[O]n a motion for a new

trial on the ground that the verdict is against the weight of the

evidence, the judge is free to weigh the evidence for himself.").

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 Appellant urges that the district court erred in granting

a new trial "without an articulated finding that the evidentiary

insufficiency resulted in a miscarriage of justice" and cites

United States v. Arache, 946 F.2d 129, 140 (1st Cir. 1991). He did

not make that argument before the district court and has waived it.

In any event, it is quite clear from the district court's analysis

that the court considered this to be a miscarriage-of-justice

situation even if it did not expressly say so.

Although a district court wields "broad legal authority"

when considering a motion for a new trial, de Pérez v. Hospital del

Maestro, 910 F.2d 1004, 1006 (1st Cir. 1990), we have often

emphasized that a "district judge cannot displace a jury's verdict

merely because he disagrees with it" or because "a contrary verdict

may have been equally . . . supportable." Ahern v. Scholz, 85 F.3d

774, 780 (1st Cir. 1996) (internal quotation marks omitted). As we

have repeatedly observed, trial judges do not sit as thirteenth

jurors, empowered to reject any verdict with which they disagree.

Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir. 1982).

Just as there are disciplined constraints on the power of

the district court to grant new trials, our own appellate review is

"circumscribed" and we may reverse only where there has been an

"abuse of discretion."7 Ahern, 85 F.3d at 780 (citing Simon v.

7
We apply the same standard of review to a district
court's grant of a new trial motion as we do to its denial of one.
Compare Goulet v. New Penn Motor Exp., Inc., 512 F.3d 34, 44 (1st

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Navon, 71 F.3d 9, 13 (1st Cir. 1995); Newell P.R., Ltd. v.

Rubbermaid Inc., 20 F.3d 15, 22 (1st Cir. 1994)); see Transamerica

Premier Ins. Co. v. Ober, 107 F.3d 925 (1st Cir. 1997); Fleet Nat'l

Bank v. Anchor Media Television, Inc., 45 F.3d 546, 553 (1st Cir.

1995); de Pérez, 910 F.2d at 1006; Wells Real Estate, Inc. v.

Greater Lowell Bd. of Realtors, 850 F.2d 803, 811 (1st Cir. 1988);

Kearns, 863 F.2d at 178; Conway v. Electro Switch Corp., 825 F.2d

593, 598 (1st Cir. 1987).

This limited role for appellate review is required by

Gasperini and is often stated by other circuits. See Holmes v.

City of Massillon, 78 F.3d 1041, 1045 (6th Cir. 1996) (noting that

under abuse of discretion review, reversal of a grant of new trial

is appropriate only when an appellate court has "a definite and

firm conviction . . . that the court below committed a clear error

of judgment in the conclusion it reached upon a weighing of the

relevant factors") (internal quotation marks and citation omitted);

United States v. Alston, 974 F.2d 1206, 1212 (9th Cir. 1992)

(Kozinski, J.) ("[A] court of appeals will only rarely reverse a

district judge's grant of a defendant's motion for a new trial, and

then only in egregious cases."); United States v. Lincoln, 630 F.2d

1313, 1319 (8th Cir. 1980) ("Corresponding to the district court's

Cir. 2008)("We review the district court's denial of a motion for
new trial for abuse of discretion only."), with Kearns, 863 F.2d at
181 ("[O]nly on a finding of an abuse of discretion [in the grant
of a new trial motion] should a reviewing court set aside the trial
court's determination.").

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broad discretion [over motions for new trial] is the limited scope

of our review: we will reverse the district court's ruling on the

motion for new trial only if we find that ruling to be a clear and

manifest abuse of discretion.").

As the Ninth Circuit explained in Alston:

Appellate deference [regarding motions for new
trial] makes sense. Circuit judges, reading the
dry pages of the record, do not experience the
tenor of the testimony at trial. The balance of
proof is often close and may hinge on personal
evaluations of witness demeanor. And, because an
order directing a new trial leaves the final
decision in the hands of the jury, it does not
usurp the jury's function in the way a judgment of
acquittal does.

974 F.2d at 1212. Thus, any Seventh Amendment concerns are

minimized because a jury ultimately decides the case.8 Appellate

courts are accordingly very deferential to district judges'

exercise of their discretion to grant new trial motions. See 11

Wright, Miller & Kane, supra, § 2818, at 194; id. § 2803, at 47-48

("[A new trial] motion invokes the sound discretion of the trial

court, and appellate review of its ruling is quite limited."

(footnote omitted)); id. § 2819, at 206 ("[T]he appellate court

must defer to the better opportunity the trial judge has to

appraise the situation."). As the Supreme Court said in Gasperini,

the trial court's power to grant a new trial "is not in derogation

8
To be sure, even a grant of JMOL does not violate the
Seventh Amendment. See Neely v. Martin K. Eby Constr. Co., 386
U.S. 317, 321 (1967).

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of the right of trial by jury but is one of the historic safeguards

of that right." Gasperini, 518 U.S. at 433 (quoting Aetna Casualty

& Sur. Co. v. Yeatts, 122 F.2d 350, 353 (4th Cir. 1941)) (internal

quotation marks omitted).

Our constrained review of a trial court's action on a

motion for a new trial is quite different from the standard we

apply to review of a motion for JMOL. Significantly, in the prior

appeal concerned with the grant of a JMOL, we were required to take

the facts in the light most favorable to the verdict.9 By

contrast, it has long been our circuit law that when reviewing a

motion for a new trial under Rule 59, we do not take the evidence

in the light most favorable to the verdict winner.

This distinction is not new. We have repeatedly

recognized that unlike review of JMOL, the new trial motion

standard of review is concerned with whether the verdict is against

the weight of the evidence, an assessment made through the lens of

abuse-of-discretion review and not requiring that we take the

evidence in favor of the verdict. See, e.g., Monteagudo v.

Asociacion de Empleados del Estado Libre Asociado de P.R., 554 F.3d

164, 170 & 174 (1st Cir. 2009) (identifying distinct standards of

review under Rule 50 and Rule 59); Marcoux v. Shell Oil Prods. Co.

LLC, 524 F.3d 33, 40 (1st Cir. 2008) (same); Casillas-Díaz v.

9
Indeed, the majority in Jennings II concluded that the
standard of review compelled it to focus on the increased force
theory as opposed to other theories. Jennings II, 499 F.3d at 10.

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Palau, 463 F.3d 77, 80-81 (1st Cir. 2006) (same); Sailor Inc. F/V,

428 F.3d 348 at 351 (same); Acevedo-Garcia v. Monroig, 351 F.3d

547, 565 (1st Cir. 2003) (same); Sanchez v. P. R. Oil Co., 37 F.3d

712, 716-17 (1st Cir. 1994) (same); Veranda Beach Club Ltd. P'ship

v. W. Sur. Co., 936 F.2d 1364, 1383-84 (1st Cir. 1991) (same).

We have long clearly distinguished between these two

standards, for example, in Gutierrez-Rodriguez v. Cartagena, 882

F.2d 553 (1st Cir. 1989), and many other cases. In Gutierrez, we

noted that appellate review of a motion for judgment

notwithstanding the verdict requires that the evidence be viewed in

the light most favorable to the verdict. Id. at 558. However, as

to the motion for a new trial, we applied our traditional standard

of review for abuse of discretion. Id. We appropriately described

this as a strict standard of review for motions for new trial, but

nowhere listed any requirement that the evidence be taken in the

light most favorable to the verdict. Gutierrez itself repeated our

earlier holdings. See, e.g., Gonzalez-Marin v. Equitable Life

Assurance Soc. of U.S., 845 F.2d 1140, 1144 (1st Cir. 1988);

Wagenmann v. Adams, 829 F.2d 196, 200-01 (1st Cir. 1987).

In Transamerica Premier Insurance Co. v. Ober, 107 F.3d

925 (1st Cir. 1997), we reiterated this well-settled dichotomy in

the standards of review but commented on the fact that both

standards were strict, daunting, and presented appellants with high

hurdles. Id. at 929. We described appellate review of JMOL as

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"plenary" review, requiring inferences to be drawn in favor of the

non-movant. Id. By contrast, we again described our review on new

trial motion as assessing whether the district court "abused its

discretion."10 Id.

It would also be inconsistent with our law on the trial

court's power to grant new trials to require that all inferences be

drawn in favor of the verdict. Indeed, as we have repeatedly

recognized, a trial judge may order a new trial "even where the

verdict is supported by substantial evidence." Lama v. Borras, 16

F.3d 473, 477 (1st Cir. 1994) (citing Wagenmann, 829 F.2d at 200);

Valm v. Hercules Fish Prods., Inc., 701 F.2d 235, 237 (1st Cir.

1983) (internal citation and quotation marks omitted); Hubbard v.

Faros Fisheries, Inc., 626 F.2d 196, 200 (1st Cir. 1980); see also

Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 634-35 (2d Cir.

2002).

Commentators are also clear that motions for new trial

10
Unfortunately, a later opinion, Stuart v. United States,
337 F.3d 31 (1st Cir. 2003), misinterpreted Transamerica and
conflated the two standards. Id. at 37; see generally Wright,
Miller & Kane, supra, § 2806, at 63 (observing "recurrent tendency
on the part of courts to confuse the standard for a new trial with
that for a directed verdict or a judgment notwithstanding the
verdict"). Citing Stuart's misinterpretation, the court again
incorrectly conflated the two standards in Baron v. Suffolk County
Sherriff's Dep't, 402 F.3d 225, 245 (1st Cir. 2005). Neither Baron
nor Stuart's statement that inferences must be drawn in favor of
the verdict are good law. In later decisions, we returned to the
appropriate distinction. See, e.g., Casillas-Díaz, 463 F.3d at
80-81. Moreover, the Supreme Court case Gasperini, 518 U.S. 415,
limited review of a new trial motion to abuse of discretion and did
not require drawing of all inferences in favor of the verdict.

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and for JMOL are to be handled differently, noting in particular

that motions for a new trial do not require a trial judge to review

the evidence in the light most favorable to the verdict. Wright,

Miller & Kane, supra, § 2806, at 66; see also id. at 64 (observing

that a district court's application of the JMOL standard to motions

for a new trial "puts the new trial standard far too high"); id. at

65 ("[O]n a motion for a new trial--unlike a motion for a judgment

as a matter of law--the judge may set aside the verdict even though

there is substantial evidence to support it.").

Our approach, that we do not take the evidence in the

light most favorable to the verdict in reviewing a grant or denial

of a new trial, is also the general rule in the circuits. See,

e.g., United States v. Fuchs, 467 F.3d 889, 910 (5th Cir. 2006)

("Viewing the evidence in the light most favorable to the verdict

is tantamount to ruling on a motion for judgment of acquittal

rather than a new-trial motion."); United States v. Walker, 393

F.3d 842, 847-48 (8th Cir. 2005); DLC Mgmt. Corp. v. Town of Hyde

Park, 163 F.3d 124, 133-34 (2d Cir. 1998); United States v.

Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985); Gill v. Rollins

Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985).

In short, a district court may err in granting a motion

for JMOL and not abuse its discretion in granting a motion for a

new trial. As we recently said in Sailor Inc., "In some cases, the

evidence might preclude judgment as a matter of law and yet lean so

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heavily in the other direction so as to justify a district judge in

ordering a new trial." 428 F.3d at 353.

We now apply the abuse of discretion standard of review.

In doing so, we look to "isolate the factual basis for the trial

court's ruling and provide the foundation for our action today" in

evaluating whether that discretion was abused. Kearns, 863 F.2d at

179.

B. The Evidence at Trial

State police obtained a search warrant in 2003 to seize

cigarettes and other evidence of untaxed sales from the smoke shop

located on tribal land in Charlestown. The police executed the

search warrant on July 14, 2003. On that day, a crowd of tribe

members and reporters gathered near the smoke shop, in anticipation

of the officers' arrival.

The smoke shop consisted of a trailer with a parking lot

directly in front of it. The trailer's front wall had two doors

facing the parking lot, one on the left and one on the right of the

small structure. Several feet of floor-space separated the

doorways from an L-shaped counter, behind which the smoke shop

employees worked.

Jennings was working inside the smoke shop when several

undercover detectives entered, posing as prospective customers.

Later, upon receiving a prearranged signal, uniformed troopers,

including Jones, arrived to secure the parking lot and assist the

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detectives in executing the warrant.

When uniformed officers arrived inside the smoke shop,

they ordered Jennings, the two other original plaintiffs, and smoke

shop employee Domingo Monroe to sit behind the counter. Jennings,

who was upset by the state police officers' presence in the smoke

shop and believed they had no right to be there, initially did not

comply. Rather, he responded by grabbing the edge of the counter;

he testified that he did this in response to the officers'

instruction that he show his hands. He eventually released his

grip on the counter and complied with the officers' order to sit

behind it. But he proceeded to shout profanities at the officers.

The officers testified that Jennings also kept getting out of his

seat and attempted to incite others behind the counter, "waving his

arm" and declaring "This is our land, this is sovereign land."

Officers testified that they asked Jennings repeatedly to "calm

down," but his "threatening" behavior continued; his actions

interfered with the officers' ability to conduct the search.

Portions of the event, lasting about one minute, were

captured by the police on videotape, with sound. Jennings's

initial resistance was captured on the smoke shop's own security

camera, without audio. Both videotapes were in evidence at trial.

As the district court found, "[t]he videotape does not clearly show

what happened between the time that Jennings was wrestled to the

floor and the time that his ankle was broken." Jennings I, 2005 WL

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2043945 at *2. Both sides agreed the scene was chaotic.

The police videotape shows a detective responded to

Jennings's continuing, obstructive behavior behind the counter by

saying, "Alright? I gave you an opportunity, you're leaving." As

Jennings began walking to the door, the detective instructed the

other troopers to "cuff him." Jennings responded by shouting, "I'm

not getting arrested" and assumed a defensive stance. The video,

as the district court recounted, shows that Jennings resisted the

officers' attempts to handcuff him and kicked at the officers.

After a struggle, officers were able to wrestle Jennings to the

floor inside the shop, where he lay on his stomach with both hands

underneath his body, near his waistband. The officers did not know

at that time whether Jennings was carrying a weapon.

The officers repeatedly instructed Jennings, who was on

the floor, to stop resisting and to show his hands, in order to see

if he was armed. Contrary to these instructions from the police,

Jennings's arms remained underneath him and he continued to twist

and turn and to kick violently at the officers. Jennings later

testified that he was not able to comply with the officers' demands

that he show his hands because his hands were trapped underneath

his body.

Officer Jones entered the smoke shop just as the struggle

with Jennings began. Jones attempted to assist the three officers

struggling to control Jennings, who was twisting and turning on the

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floor. He did so by kneeling, grabbing Jennings's right leg, and

employing an "ankle turn control technique." Jones was beside the

door, inside the trailer; Jennings lay inside with officers

surrounding him, trying to hold him down and obtain control. The

technique Jones used, which involved twisting Jennings's ankle, was

taught to Jones at the State Police Academy. It was intended to

induce compliance by a person who was actively or passively

resisting arrest and to prevent that person from kicking. Jones

testified that Jennings remained "combative" as Jones applied the

technique, continuing to kick his legs and resist the officers'

efforts to bring him under control. A total of five different

officers were involved in this incident.

At one point, Jennings told Jones that the force he was

using on his ankle was hurting him and that he had recently had

surgery performed on that ankle. The district court found that the

video shows that Jones responded, "Don't resist and you won't have

to worry about it." Jennings I, 2005 WL 2043945, at *2.

After several seconds, one of the officers, Wilfred Hill,

was able to gain control of Jennings's left hand; he gave control

of the hand to another officer and then rose to his feet. Jennings

was still on the floor, on his stomach. Jennings testified that he

had not been resisting at this point, but it is uncontested that he

was still on his stomach, his right hand was still not visible

underneath him, and that the officers were still trying to handcuff

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him. Jones testified he continued to use the ankle control

technique on Jennings, since Jennings had not decreased his

resistance and was not yet cuffed and under control. Less than

twenty seconds after Hill got up, Jennings's ankle was broken and

he yelled in pain. Jones testified that he did not increase the

force he applied to Jennings's ankle at any point during the

struggle. Jennings testified Jones did increase his force on the

ankle. Shortly after the injury, Jennings was handcuffed and

brought to his feet. As Jennings was escorted from the smoke shop,

he said, "It took ten of you to take me down." Jennings III, 2008

WL 2202429, at *4.
IV.

A. There Was No Abuse of Discretion in the District Court's
Second Ground for Grant of a New Trial

Because the district court's second ground suffices to

support its holding, we turn to it now. As an independent basis

for its grant of a new trial, the district court held that even if

the jury verdict had unambiguously rested on the increased force

theory, that theory would have been contrary to the weight of the

evidence. Our review of the record reveals no abuse of discretion.

See Ahern, 85 F.3d at 780; Kearns, 863 F.2d at 181.

The district judge's explanation of his holding was

carefully reasoned and grounded in the evidence.11 The district

11
There is no requirement that the district court make
specific findings. "[A] trial judge is not required to enter
supporting findings of facts and conclusions of law when granting

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court discussed in detail the testimony of the key witnesses, and

his opinion both recites the correct legal standards and shows

careful reflection. Accord Alston, 974 F.2d 1206 (affirming grant

of new trial on this reasoning). We, too, have reviewed the

relevant trial transcript and the two videotapes, and they reveal

no abuse of discretion in the district court's view. Accord id.

As to the videotapes, our review is not de novo, in any

event, but deferential. Muniz v. Rovira-Martino, 453 F.3d 10, 13

(1st Cir. 2006) ("The [Supreme] Court could scarcely have been more

clear on this point: we may not exercise de novo review over the

district court's account of the video evidence.") (citing Anderson

v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)). We cannot

say the trial judge's view was an abuse of discretion.12

We agree that the only evidence supporting the allegation

that Jones increased the force he was applying to Jennings's ankle,

other than Jennings's own statements, was the testimony of two

witnesses: Domingo Monroe–-himself a member of the Narragansett

Indian tribe and an employee of the smoke shop--and Daniel Piccoli,

one of the shop's patrons. Jennings III, 2008 WL 2202429, at *3.

a new-trial motion." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S.
33, 36 n.3 (1980).
12
Plaintiff argues on appeal that Exhibit A, the police
videotape, compels the conclusion that Jones increased his force in
holding Jennings's ankle after Officer Hill got up. Exhibit A does
no such thing; there is no view of the ankle nor the holding of the
ankle. Plaintiff also argues that Exhibit A shows a placid arrest
scene. Again, Exhibit A shows no such thing.

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Jones denied this contention.

At trial, both Monroe and Piccoli stated that after

Jennings said that the officer was hurting his ankle, Jones twisted

it more.13 The district court determined that a jury verdict that

relied on this testimony would have been against the weight of the

evidence. Id. The court's conclusion did not rest entirely on its

assessment of the witnesses's demeanor on the stand. To the

contrary, the district court systematically measured their

statements against clear, objective evidence and found that

"neither Monroe nor Piccoli was in any position to observe Jones'

actions or what was taking place during the struggle." Id.

In weighing the evidence, the district judge first

determined that, despite Monroe's contrary statement, Monroe could

not see Jennings struggling on the floor with the officers from his

position within the smoke shop.

The district court found the videotape shows that as the

incident played out, Monroe was seated across the room, behind the

counter. Id. Although Monroe's seat was positioned behind an

opening in the counter, two officers stood immediately in front of

him. Id. Two more officers were positioned between him and the

struggle with Jennings. Id.

13
Monroe testified that Jones "cranked down harder" on
Jennings's ankle after telling Jennings that his ankle would stop
hurting if he ceased his resistance; Piccoli stated that Jones
"[j]ust twisted more" after Jennings asked him to release his
ankle.

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 Our own review of the record shows that the district

court's analysis is supportable. Monroe was speaking with at least

two of the large officers directly in front of him as the incident

plays out. Monroe's view of the struggle was further obstructed by

the large bodies of the officers with whom Jennings was struggling

in the moments before his ankle was broken. Indeed, Keith Huertas,

who was seated mere inches from Monroe, testified that it was

impossible to see anything but "a real pileup of officers on top of

[Jennings]."

The court also found that Piccoli could not see the

actual struggle, which played out inside the smoke shop, from his

alleged vantage point outside the shop--much less whether Jones had

increased his use of force.14 On the morning of the incident,

Piccoli testified, he had traveled about twenty miles to purchase

cigarettes at the smoke shop. Upon arrival, he found that the shop

did not have his preferred brand. Nonetheless, he opted to remain

in the parking lot for approximately three-and-a-half hours. He

was still there when the police initiated their raid of the smoke

shop; at trial, he indicated that he had been thrown down a set of

stairs shortly before the struggle began.

The district court found the videotape showed that

14
Piccoli also testified that he could see Jones "gritting
his teeth" as Jones increased his force. However, Piccoli conceded
Jones was looking down and did not look back in Piccoli's
direction, toward the doorway and outside.

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Piccoli was in "the middle of the parking lot" outside the smoke

shop "just before" the incident. Id. Piccoli conceded he was

outside the trailer in the parking lot, and thus beyond the deck

and stairs leading to the door, when the struggle took place.

Several individuals stood between the struggle and the doorway

through which Piccoli claimed to have seen Jones applying increased

pressure to Jennings's ankle.15 The videotape demonstrates that

Piccoli was positioned across the parking lot from the smoke shop

both shortly before and shortly after the struggle; the parking lot

was teeming with law enforcement, media, and spectators. These

observations support the district court's assessment of Piccoli's

account.

At trial, Piccoli failed to identify Jones in the police

videotape, instead pointing out a different State Trooper.

Independently, in recorded testimony before a commission

investigating the encounter that was later offered at trial,

Piccoli stated that he had seen the entire incident take place

outdoors. Id. The incident, however, took place inside the smoke

15
Jennings may be correct that the district court had the
wrong door in mind when it noted that the camera man would have
blocked Piccoli's view; the camera man was not between Piccoli's
asserted location and Jones. Our own review of the videotape
evidence indicates, however, that the court's determination that
Piccoli was unable to observe Jones's actions was not clearly
erroneous because other individuals were standing in the correct
doorway. See Muniz, 453 F.3d at 13 ("Under the clear error
standard, [plaintiff] must convince us that there was only one
permissible interpretation of the [video] footage, and that the
district court's interpretation was clearly incorrect.").

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shop. This confusion by Piccoli as to the location of the struggle

supportably reinforced the district court's "[d]oubts regarding

Piccoli's ability to have observed what happened." Id.

The district court further noted that even if Monroe or

Piccoli had the unobstructed views they claimed to have had, they

still would have been hard-pressed to assess such subtle variations

as "the degree of force that Jones was exerting and whether Jones

was increasing the force or merely maintaining the hold." Id.

This is not a case of mere conflicting testimony. Nor

does it involve a mere question of a witness's demeanor. Cf.

United States v. Garcia, 978 F.2d 746, 748 (1st Cir. 1992). The

district judge cited clear, objective evidence disproving the

witnesses' statements. See, e.g., Anderson, 470 U.S. at 575

("[F]actors other than demeanor and inflection go into the decision

whether or not to believe a witness. Documents or objective

evidence may contradict the witness' story.").

The district judge then turned his comprehensive

assessment of the available evidence to the testimony of "[t]he

only two people in a position to know" whether there had been an

increase in pressure: Jennings and Jones. Jennings III, 2008 WL

2202429, at *3.

Jennings and Jones testified at the trial. The district

judge found Jennings's credibility undermined not only by his

demeanor but also by (1) his assertion that he had held onto the

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counter on the instructions of law enforcement, a claim that was

clearly contradicted by the security videotape;16 (2) his testimony

that he ceased struggling after his ankle was broken, which no

fewer than four state troopers contradicted; and (3) the overall

"combativeness" suggested by his pronouncements before and after

the encounter, which was "somewhat inconsistent" with his claim

that he offered no resistance once he had been brought to the

floor. Id. at *3-4. These are all reasoned assessments.

Ultimately, Jennings's repeated instances of disputed or deceptive

testimony prompted the district court to find that Jones offered

the more credible account on the issue of increased force. Id. at

*3; Kearns, 863 F.2d at 181 (affirming district court's grant of a

new trial "[i]n the face of overwhelming testimony and evidence

that conflicted with [plaintiff's] version of events").

District court determinations of credibility are of

course entitled to great deference. See, e.g., Anderson, 470 U.S.

at 575 ("[O]nly the trial judge can be aware of the variations in

demeanor and tone of voice that bear so heavily on the listener's

understanding of and belief in what is said."); Davignon v.

Clemmey, 322 F.3d 1, 11 (1st Cir. 2003). We reject Jennings's

contention that the trial judge's determination resulted from

16
The smoke shop's security videotape plainly shows
officers struggling to pull Jennings's hands from the counter,
contrary to Jennings's claim that he complied with all of the
officers' instructions.

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"fail[ure] to examine Jones' credibility." When advancing this

argument, Jennings attempts to impugn Jones's credibility on a

range of issues. Even if Jones was less than forthcoming in some

of his testimony, that does not undermine the district court's

determination that Jones's version of events was overall more

consistent with the other evidence. We thus need not address

Jennings's assertions individually, as we "accord considerable

deference to the trial court's greater ability to understand the

scope of the evidence presented before it and to judge the

credibility of th[e] witnesses." Davignon, 322 F.3d at 11

(alteration in original) (internal quotation marks omitted).

In short, the trial judge found that if the jury verdict

had rested solely on a theory that Jones had used an increased

force level, that verdict was contrary to the clear weight of the

evidence. The district court's grant of the motion for a new trial

was properly within its discretion.

B. There Was No Waiver of the New Trial Motion

We also reject Jennings's argument that the district

court erred in granting a new trial because Jones failed to press

the district court for a ruling on this motion after it initially

and erroneously ruled the motion was moot. First, Jennings did not

present the argument to the district court until his motion to

reconsider the court's decision to grant a new trial, and it is

waived. Second, it is simply wrong on the merits.

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 V.

The judgment of the district court granting defendant's

new trial motion is affirmed.

-Concurring Opinion Follows-

- 32 -
 LIPEZ, Circuit Judge, concurring. This case demonstrates

the importance of standards of review to the outcome of appeals.

In the prior majority decision in this case, I wrote to vacate the

district court's grant of judgment as a matter of law for defendant

Jones because that ruling, in my view, was incompatible with the

district court's obligation to consider whether the jury had "a

legally sufficient evidentiary basis" for its verdict. Fed. R.

Civ. P. 50(a). My view on that issue has not changed. When the

evidence presented at the first trial was considered in the light

most favorable to the verdict – the applicable standard both in the

district court and on appeal – the jury's judgment in favor of

Jennings had to be upheld.

The standards are very different, however, for motions

seeking a new trial. In deciding whether to grant such a request,

the district court is entitled to make its own judgment about the

strength of the evidence, including the credibility of witnesses.

MacQuarrie v. Howard Johnson Co., 877 F.2d 126, 132 (1st Cir.

1989). It follows that we, in turn, are obliged to afford wide

latitude to the court's discretionary judgment about the strength

of the evidence. See, e.g., Johnson v. Spencer Press of Maine,

Inc., 364 F.3d 368, 375 (1st Cir. 2004).

The impact of the differing standards is apparent when we

examine the "critical factual dispute" at the heart of the prior

majority decision: "whether Jones increased the force he applied

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after Jennings already had ceased resisting for several seconds."

Jennings v. Jones, 499 F.3d 2, 7 (1st Cir. 2007). We concluded

that, given the testimony of Jennings, Piccoli and Monroe, "the

only view of the evidence consistent with the principle that we

take the facts in the light most favorable to the jury verdict" was

that Jones had in fact increased the force he used to restrain

Jennings. Id. at 10. Based on that view of the evidence, we held

that the district court improperly granted judgment for Jones on

Jennings' excessive force claim.

In this appeal, however, our focus has shifted. In

evaluating Jones' motion for a new trial, the district court

discussed the evidence that was essential to our previous decision

– the testimony of Jennings, Piccoli and Monroe. It found their

accounts of the increased use of force implausible in light of the

videotapes and the officers' testimony, leading it to conclude that

the jury's verdict was against the weight of the credible evidence.

In reviewing that ruling, our focus is no longer on whether the

evidence viewed in the light most favorable to the jury's verdict

supports the verdict – it does – but on whether the district court

abused its discretion in doubting the truthfulness of that evidence

and ordering a new trial to avoid what it perceived as a

miscarriage of justice.

The change in the question has necessarily led me to a

different answer in this second appeal. I agree with my colleagues

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that the district court did not abuse its discretion in concluding

that a new trial was warranted. Hence, I join them in affirming

the district court's judgment.

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