concurring:
I differ with my colleagues about the assault and battery claim in this case, but in the end I am constrained to agree — for narrower reasons than my colleagues adopt — that the jury should have been allowed to consider it. If appellant merely had presented evidence that Officer Franc-hak used a carotid artery “choke hold” to subdue him (as he struggled violently with David Petty and Officer Kirks), breaking his jaw in the process, I would vote to affirm the trial court’s award of judgment to the defendants as a matter of law. Police use of such a choke hold to subdue appellant was not per se illegal or excessive, but rather was permissible if it was “necessary to protect the life of a civilian or a law enforcement officer.” See D.C.Code § 5-125.03(a) (2001). To get to the jury, appellant therefore would have been obliged at a minimum to present expert testimony or other probative evidence that it was not reasonably “necessary” for Officer Franchak to use a choke hold in the circumstances of this case, i.e., that the officer reasonably could have restrained appellant by a different and lesser application of .force. (It was undisputed *795that appellant ignored repeated police commands to cease fighting before Officer Franchak tried to restrain him physically.) Appellant did not present such evidence, either in testimonial or documentary form.
Appellant did, however, present some evidence — not much, but some — from which I think the jury reasonably could have found that Officer Franchak needlessly continued to use the choke hold on him, and broke his jaw, after appellant had stopped struggling and was subdued.13 An eyewitness, Rahmaan R. Ali, testified that after Officer Franchak put appellant in a “choke lock,” “I seen Mr. Smith put his hands up, tell him, ‘I let him go,’ while Officer Franchak was still pulling him.” Elaborating on this statement, Ali testified as follows:
Like I said, Officer Franchak came and wrapped his arm around his— around his neck and was, “Let him go. let him go,” and like he was — I mean he was literally in the air. He pulled him off — off of him out of the air like this and was like, “Let him go,” and Mr. Smith put his arms up, “I let him go. I let him go,” you know what I’m saying, and Officer Franchak was still pulling him. Then when he let him go, I seen blood coming out Mr. Smith’s mouth and he told him, ‘You broke my jaw.”
Appellant himself was rather less clear, but I understand his testimony to be that Officer Franchak continued to choke him and cut off his breathing even after he repeatedly told the officer “I did let him go. I did let him go.”14
Personally I may think that this testimony (and the critical inference that I suggest a reasonable jury could have drawn from it) was against the great weight of the evidence overall, but the standard for granting judgment as a matter of law in a jury trial is more stringent. See Super. Ct. Civ. R. 50(a)(1) (requiring that there be “no legally sufficient evidentiary basis for a reasonable jury to find for” the party on the issue in question); Sabir v. District of Columbia, 755 A.2d 449, 452 (D.C.2000) (“[T]he evidence must be viewed in the light most favorable to the nonmoving party, who must be given the benefit of all reasonable inferences to be drawn from the evidence.”). Accordingly, on what I take to be a narrower ground, I am compelled to concur with my colleagues’ decision that appellant is entitled to a new trial on his assault and battery claim (and, consequently, on his § 1983 claim as well).
. Regrettably, appellant’s counsel failed to call this evidence to the trial court’s attention when it considered the defendants’ motion for judgment as a matter of law, and instead seemed to agree that the evidence did not exist. Thus, during argument on the motion, the following critical colloquy took place:
The Court: .... Regardless of whose theory that you take in this case, once he is subdued be it through the broken jaw, the fight broke up or whatever, once they are separated, Franchak stops.
[APPELLANT’S COUNSEL]: Correct.
[Emphasis added]
. According to appellant:
.... [I]t got to the point where I flipped over like this and my neck was still in him, and he was like, "Let him go. Let him go.” I had him like this and he was like this and I was like, "I did let him go." I was kicking because I started panicking because I couldn’t breathe. I was like, "I did let him go. I did let him go," because I started getting scared.
My jaw popped and blood started gushing out of my mouth onto his arm, and he was like, "You got AIDS? You got AIDS?” I'm still on the ground and I was like, "No, I ain’t got no AIDS," with blood gushing out my mouth. I’m like, “You just broke my jaw. You just broke my jaw.” [Id. at 231-32]