United States Court of Appeals
For the First Circuit
No. 05-2522
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
Torruella, Lynch and Lipez, Circuit Judges.
Michael Bradley for appellant.
Rebecca Tedford Partington, Deputy Chief, Civil Division,
Rhode Island Attorney General's Office, for appellee.
August 17, 2007
LIPEZ, Circuit Judge. Appellant Adam Jennings, a member
of the Narragansett Indian Tribe, worked at a "smoke shop" operated
by the tribe and located on Indian tribal land in Charlestown,
Rhode Island. The smoke shop sold an array of cigarettes to
members of the tribe and the general public. During a search of
the smoke shop by the Rhode Island State Police, Jennings was
arrested for disorderly conduct. Jennings initially resisted the
arrest, requiring the use of force by state police officials to
subdue him. As a result of that confrontation, appellee Kenneth
Jones used an "ankle turn control technique" which broke Jennings'
ankle. Jennings brought suit under 42 U.S.C. § 1983 against Jones
and other officers, claiming that they had violated his Fourth
Amendment rights by using excessive force to restrain him.
Jennings also brought a claim under state law for battery.
Although a jury found in favor of most of the defendants,
it ruled for Jennings on his excessive force and battery claims
against Jones and awarded compensatory damages of $301,100. The
district court then granted Jones' post-verdict motion for judgment
as a matter of law, ruling for Jones on all three prongs of the
qualified immunity inquiry. It first held that there was no
constitutional violation because there was no evidence from which
a reasonable jury could have concluded that the force used to
subdue Jennings was excessive. It then concluded that, even if
there had been a constitutional violation, Jones was entitled to
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qualified immunity because the relevant law was not clearly
established and a reasonable officer would not have believed that
the force was excessive and thus in violation of the Fourth
Amendment. The court also granted judgment as a matter of law for
Jones on the battery claim. Along with his motion for judgment as
a matter of law, Jones filed motions for a new trial and a
remittitur. In contravention of Federal Rule of Civil Procedure
50, the district court did not rule on these motions.
On appeal, Jennings challenges the court's determinations
on his Fourth Amendment claim. After careful review, we conclude
that the court erred in granting qualified immunity to Jones.
First, viewing the evidence in the light most favorable to the jury
verdict, we conclude that the record establishes that Jones
violated Jennings' constitutional right to be free of excessive
force. Second, we find that this right was clearly established at
the time of Jennings' injury. Third, we conclude that a reasonable
officer in Jones' position would have believed that his actions
violated Jennings' constitutional right. Consequently, we vacate
the judgment of the district court and order reinstatement of the
jury award. However, because the district court failed to rule on
Jones' motions for a new trial and a remittitur in accordance with
Federal Rule of Civil Procedure 50, we remand to that court for a
ruling on those motions.
-3-
I.
A. Factual Background
In reviewing a grant of judgment as a matter of law
following a jury verdict, "[w]e examine the record as a whole,
reading the evidence in the light most favorable to the jury
verdict." Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271,
275 (1st Cir. 2003).
On July 14, 2003, Jennings was at work in a trailer
referred to as the "smoke shop" owned and operated by the
Narragansett tribe and located on tribal land in Charlestown, Rhode
Island. The tribe and the State of Rhode Island were engaged in an
ongoing dispute about whether the tribe could sell cigarettes tax-
free.1 Pursuant to this dispute, the Rhode Island State Police had
obtained a warrant to seize the cigarettes at the smoke shop, and
several plain clothes officers were stationed inside the shop.
After uniformed officers arrived in marked cars in the parking lot,
the undercover officers inside the shop instructed Jennings to take
a seat behind the sales counter. Jennings initially grabbed onto
the counter, but then complied and seated himself behind the
counter. He also complied when the state police asked him to move
to a different seat.
1
This court addressed other issues arising out of this
dispute in Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16
(1st Cir. 2006)(en banc), which provides further background on the
events that precipitated the search of the smoke shop.
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Jennings testified that he was "upset" during these
events. He complained loudly that the Rhode Island police had no
right to be on his property, and he expressed concern over their
treatment of his mother, who was also in the shop. He repeatedly
used profanity in his comments.
Eventually, Officer Ken Bell asked Jennings to leave the
shop without informing him that he was under arrest for disorderly
conduct. A video taken by the state police shows that as Jennings
was leaving the shop, an officer issued an order to handcuff him,
and Jennings responded, "I'm not getting arrested." The video also
shows that Jennings resisted handcuffing and that several officers
subsequently wrestled him to the floor. Jones was one of the
officers involved in subduing Jennings. He used an ankle restraint
technique called the "ankle turn control technique" to control
Jennings' leg.
During this conflict, the officers repeatedly instructed
Jennings to stop resisting and to show them both of his hands
because they were concerned that he might have a weapon. Jennings
was initially unable to produce his left hand for handcuffing
because it was trapped underneath his body. Officer Hill, one of
the officers who was attempting to subdue Jennings, testified that
he pulled Jennings' left arm out from under his body. The video
shows that Hill then got up and walked away.
Jennings testified that he had ceased resisting before
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his arm was pulled out from underneath his body. About sixteen
months prior to the smoke shop confrontation, Jennings had broken
the ankle that Jones was restraining and had surgery performed on
it. The officer's use of the "ankle turn control technique" caused
Jennings considerable pain. Jennings informed Jones that the force
Jones was using was hurting his previously injured ankle. Jones
then increased the amount of force he was using and broke Jennings'
ankle.
On the video, several seconds elapse from the time that
Hill got up and left to the time that Jennings yelled in pain as
his ankle was broken.2 Within seconds after Jennings' injury, the
officers brought Jennings to his feet, already handcuffed, and
escorted him outside the smoke shop.
B. Procedural History
Jennings brought this action against Jones and several
2
There is some uncertainty as to the precise length of time
that elapsed between the time that Hill got up and the time that
Jennings yelled in pain. In his closing argument to the jury,
Jennings' attorney described the interval as "twelve seconds at
least," while Jennings' appellate brief describes the interval as
eighteen seconds, citing only to the videotape of the incident.
Although the videotape was played for the jury several times at
trial and the jury also viewed the videotape during its
deliberations, no one actually testified to the length of time that
elapsed. Jones' appellate brief describes the time as "12-15
seconds" without citation. Consequently, we will describe the
length of time as "several seconds." Dictionaries typically define
"several" as "being more than two but fewer than many in number or
kind." See Random House Dictionary of the English Language 1754
(2d ed. 1987). While this definition is necessarily inexact, we
can do no better with this record.
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other police officers seeking damages under 42 U.S.C. § 1983 for
excessive use of force and for battery under state law.3 The
officers moved for judgment as a matter of law after the close of
Jennings' evidence, raising the qualified immunity defense for the
first time.4 The court denied the motion with respect to Jennings'
excessive force claim against Jones,5 noting:
There was testimony as to Trooper Jones that
he continued twisting the ankle of Mr.
Jennings even after Mr. Jennings had been
subdued and even after Mr. Jennings says that
he told him that he'd had a previous injury to
the ankle and he was breaking the ankle. So as
to Detective Jones, there's enough evidence
from which a jury at this point could conclude
that the force was excessive.
The court did not explicitly address the issue of qualified
immunity. After the close of all the evidence, defendants renewed
3
This case originally was brought by Jennings, his mother
Paulla Dove Jennings, and Keith Huertas, another employee of the
smoke shop. The plaintiffs alleged a wide array of claims against
various defendants, including excessive force under the Fourth
Amendment, violation of equal protection under the Fourteenth
Amendment, negligent infliction of emotional distress, intentional
infliction of emotional distress, false imprisonment, and assault
and battery. Aside from Jennings' excessive force and battery
claims against Jones, all the claims were resolved in defendants'
favor, either by the court on defendants' motions for judgment as
a matter of law or by the jury in its verdict. No other plaintiffs
or defendants are involved in this appeal.
4
The government explains that it did not file a pretrial
motion raising the qualified immunity issue because Jones and other
officers were not named in their individual capacities until
shortly before the deadline for filing motions.
5
At this juncture, the court granted judgment as a matter of
law on various other claims that have no bearing on this appeal.
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their motion for judgment as a matter of law, but did not
specifically renew their qualified immunity argument. The court
again denied the motion with respect to Jennings' excessive force
claim against Jones,6 explaining:
[W]e have very different versions as to what
happened. According to Mr. Jennings, Trooper
Jones grabbed his ankle, he wasn't kicking, he
wasn't doing anything that would warrant it.
Trooper Jones grabbed his ankle, twisted his
ankle, he told him that he had had previous
surgery on the ankle, and that the ankle, he
was in the process of breaking his ankle. And
according to Mr. Jennings, Trooper Jones
actually increased the pressure on the ankle
and broke his ankle. . . . If the jury accepts
Mr. Jennings' version, it might very well find
that Trooper Jones used excessive force.
Again, the court did not explicitly address the issue of qualified
immunity.
The case was submitted to the jury, which awarded
Jennings $301,100 in compensatory damages for his claims against
Jones. Following the verdict, Jones moved for judgment as a matter
of law pursuant to Federal Rule of Civil Procedure 50(b) on the
ground that he was shielded from liability by the doctrine of
qualified immunity. Jones also moved for a new trial, or, in the
alternative, to amend the judgment by granting a remittitur.
The district court granted Jones' motion for judgment as
a matter of law, concluding that it had erred in submitting the
6
At this juncture, the court again granted judgment as a
matter of law on various other claims that have no bearing on this
appeal.
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case to the jury to determine whether excessive force was used and
ruling for Jones on all three prongs of the qualified immunity
inquiry. It first held that there was no constitutional violation
because there was no evidence from which a reasonable jury could
have concluded that the force used to subdue Jennings was
excessive. It then concluded that, even if there had been a
constitutional violation, Jones was entitled to qualified immunity
because the relevant law was not clearly established and a
reasonable officer would not have believed that the force was
excessive and thus in violation of the Fourth Amendment. In
granting judgment as a matter of law, the court also held that the
remaining motions for a new trial and for a remittitur had become
moot.7 This appeal ensued.8
II.
The issue before us is whether the district court
properly found appellee Jones entitled to qualified immunity from
damages. When a defense of qualified immunity is pressed after a
jury verdict, we have determined that "the evidence must be
construed in the light most hospitable to the party that prevailed
at trial." Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999);
7
As we shall explain, this ruling of mootness was incorrect.
See infra Section IV.
8
On appeal, Jennings does not contest the district court's
grant of judgment as a matter of law with respect to his state law
battery claim.
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see also Borges Colón v. Román-Abreu, 438 F.3d 1, 18 (1st Cir.
2006) (citing Iacobucci). In such an analysis, "deference should
be accorded to the jury's discernible resolution of disputed
factual issues." Iacobucci, 193 F.3d at 23. Thus, where the jury
has issued a general verdict, as it did here, we "view[] the facts
in the light most favorable to the verdict." Whitfield v.
Meléndez-Rivera, 431 F.3d at 8. This view of the facts persists
throughout the three prongs of the qualified immunity analysis.
See Borges Colón, 438 F.3d at 19 (rejecting, on the third prong of
the qualified immunity analysis, a factual scenario proposed by
defendants on the ground that "a jury easily could have found that
this was not so").
In this case, we must take this approach with respect to
a critical factual dispute: whether Jones increased the force he
applied after Jennings already had ceased resisting for several
seconds. Jennings' claim of excessive force does not rest on the
allegation that Jones merely used the ankle turn control technique,
but rather that Jones increased the amount of force he applied
after Jennings had stopped resisting and stated that Jones was
hurting his previously injured ankle. Indeed, this theme of
increased force by Jones without justification was the core of
Jennings' case.
Jennings' opening statement immediately described this
version of events to the jury. His attorney stated: "[O]ther
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witnesses will say that [Jennings] was warning [Jones] that he was
breaking his leg. The evidence will show that . . . the way
[Jones] responded to that information was to twist harder, even
though there was no reason to be twisting at all." At trial, three
witnesses testified about Jones' restraint of Jennings. Jennings
himself testified: "It was almost, not just incremental . . . I'm
telling the guy, look, you're going to break my ankle and so forth,
and he twisted it more." Similarly, Domingo Monroe, who was seated
across the room when the struggle occurred, testified: "Adam
Jennings said, you're hurting my ankle, it was already injured at
one point in time . . . and then the officer said, well . . . if
you wouldn't resist, then your ankle . . . wouldn't be hurting, and
then as he said that, he cranked down harder on the ankle."
Finally, Daniel Piccoli testified that he observed the struggle
through the open door of the smoke shop:
Q: Mr. Piccoli, could you describe the
movements, if any, of the person who was on
the floor?
A: There weren't any.
...
Q: Did there come a point in time when you
heard the person on the floor say something?
A: Yes.
Q: What did you hear him say?
A: He said something in regard to, "let go,
you're going to break my ankle."
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Q: And what, if anything, did the officer who
was holding onto his ankle do?
A: Just twisted more.
Jennings' attorney emphasized this increased use of force in his
closing argument:
Now, Adam Jennings himself has testified that
he was on the floor, he was saying to somebody
. . . you're breaking my ankle or I just had
surgery. And you heard testimony that the
immediate response was [] a greater
application of force than there already had
been, you heard that from Dan Piccoli.
Near the end of the closing argument, Jennings' attorney returned
to this theme:
[Jones] never increased his force, he said,
never decreased it. Now you tell me, if
you've got constant force on somebody's ankle
and their foot, why at some point does it
break? . . . [D]id Trooper Jones who had Adam
Jennings totally under control, lose it and
just decide that because this guy was still
complaining, that he was going to teach him a
little bit of a lesson and put a little bit
more pressure on.
As highlighted by the arguments of counsel,9 the
consistent testimony from Jennings and two eye-witnesses would
allow a reasonable jury to conclude that Jones increased the force
9
Our conclusion that a reasonable jury could have found that
Jones increased the force he used after Jennings had already ceased
resisting is based on the principle that we must view the evidence
in the light most favorable to the jury verdict. This conclusion
does not depend on the substance of the opening statements and
closing arguments. However, the opening statements and closing
arguments emphasize that this principle is consistent with the way
that the case was argued to the jury.
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he used to restrain Jennings after Jennings had already ceased
resisting. This version of events correctly construes the facts
"in the light most favorable to the verdict." Whitfield, 431 F.3d
at 8.
The district court failed to view the facts in this
light. In its written decision granting judgment as a matter of
law to Jones on the basis of qualified immunity, the district court
stated that the testimony of the police officers was more credible
than the contrary testimony of Jennings, Piccoli and Monroe.
Therefore, it did not believe that "Jones continued to twist
Jennings' ankle after Jennings had stopped resisting and was under
control." (Emphasis in original.) However, the district court
also correctly noted that it could not grant judgment as a matter
of law on that basis. See 9A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2524 (2d ed.
1995)(explaining that, in granting judgment as a matter of law, a
court "is not free to weigh the parties' evidence or to pass on the
credibility of witnesses or to substitute its judgment of the facts
for that of the jury.")(internal footnotes omitted). Instead, the
court granted judgment as a matter of law on the basis of qualified
immunity, finding that Jennings had not presented evidence from
which the jury could conclude that the force used to subdue
Jennings was excessive, and that, in any case, Jones was entitled
to qualified immunity because the relevant law was not clearly
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established and a reasonable officer would not have believed that
the force was excessive and thus in violation of the Fourth
Amendment.
We reserve discussion of the court's ultimate ground for
granting judgment as a matter of law for our qualified immunity
analysis in the next section of this opinion. Here, we wish only
to emphasize an important inconsistency in the district court's
analysis of the evidence. The court acknowledged that it could not
supplant the jury's view of the facts with its own. Assessing
credibility was the jury's role, and, as the court also
acknowledged, the evidence permitted a reasonable finding by the
jury that Jones increased the force he used after Jennings had
ceased resisting. Yet the district court's qualified immunity
analysis incorporated its skepticism about the jury's fact-finding
on the critical issue of whether Jones increased his use of force.
At one point, the court stated in its decision that "the jury
determined that Jones' use of the ankle turn control technique
amounted to excessive force." (Emphasis added.) Later, it
referred to Jones "maintaining" the ankle hold after Jennings
ceased resisting. Given the witness testimony discussed above, the
district court's characterization is incomplete. Jennings and his
two witnesses testified that Jones increased his force after
Jennings ceased resisting, and we adopt this view of the evidence
in accordance with the principle that we take facts in the light
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most favorable to the verdict.
The dissent intimates that the jury's fact-finding role
may be different in a case involving qualified immunity, noting our
prior statement that "the Supreme Court has not clearly indicated
whether the judge may act as fact-finder when there is a factual
dispute underlying the qualified immunity defense or whether this
function must be fulfilled by a jury." Kelley v. LaForce, 288 F.3d
1, 7 n.2 (1st Cir. 2002). The dissent also claims that, by taking
the facts in the light most favorable to the jury verdict, we
engage in "a bit of legal fiction." It argues that we have no way
of knowing what facts the jury found, and lists the various factual
scenarios that the jury might have found in a lengthy footnote.10
10
To buttress this criticism, the dissent relies on an
idiosyncratic and distinguishable case. In Iacurci v. Lummus Co.,
387 U.S. 86, 86-87 (1967), the jury was instructed that, if it
found that a "hoist" was negligently designed, it should indicate
which of five specified design aspects was found unsafe by
answering "yes" or "no" to five questions on a special
interrogatory form. The jury found negligent design, but answered
only one question in the affirmative, leaving the other four blank.
Id. at 87. From this lack of response, the appellate court
concluded that the jury would have answered the other four
questions in the negative. Id. The Supreme Court stated that it
did not "share the Court of Appeals' confidence as to the meaning"
of the jury verdict, explaining that "[p]erhaps the jury intended
to resolve these questions in respondent's favor; but the jury
might have been unable to agree on these issues, or it simply might
not have passed upon them because it concluded that respondent had
negligently designed the hoist in another respect." Id. at 87-88.
In Iacurci, the jury's lack of response to a set of specific
instructions made it impossible either to "take the facts in the
light most favorable to the verdict," Whitfield, 431 F.3d at 8, or
to extract the jury's "discernible resolution of disputed factual
issues," Iacobucci, 193 F.3d at 23. Such circumstances are not
present here, where the jury issued a general verdict in favor of
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Finally, it suggests that the jury may have reached a compromise
verdict.11
The dissent's speculations ignore the fundamental
principle that, in civil actions, our federal judicial system
"distributes trial functions between judge and jury and, under the
influence - if not the command - of the Seventh Amendment, assigns
the decisions of disputed questions of fact to the jury."
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 432
(1996)(citation omitted). Indeed, we acknowledged this principle
in Kelley by stating that “when facts are in dispute, ‘we doubt the
Supreme Court intended this dispute to be resolved from the bench
by fiat.’” Kelley, 288 F.3d at 7 n.2 (quoting Prokey v. Watkins,
942 F.2d 67, 72 (1st Cir 1991)). Consistent with this principle,
other courts have taken the facts in the light most favorable to
the jury verdict in reviewing a district court's grant of judgment
as a matter of law in cases involving qualified immunity. See,
e.g., Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 503 (9th
Cir 2004)("Many facts were hotly disputed at trial. We state them
here consistent with the verdict.”); Tamez v. City of San Marcos,
118 F.3d 1085, 1091 (5th Cir. 1997)(“[W]e consider all of the
Jennings and we are bound, by numerous precedents, to take the
facts in the light most favorable to that verdict.
11
The jury found for defendants on five other claims,
indicating that it carried out its responsibilities carefully. Any
judgment beyond that is pure speculation.
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evidence in the light most favorable to the nonmoving party.");
Henderson v. DeRobertis, 940 F.2d 1055, 1057 (7th Cir. 1991)(“We
must view all the evidence and inferences in the light most
favorable to [plaintiffs], who prevailed with the jury; any
conflicts in the evidence must be resolved in favor of those
[plaintiffs] and every permissible inference must be drawn in their
favor.”).
In this case, the only view of the evidence consistent
with the principle that we take the facts in the light most
favorable to the jury verdict is that Jones increased the force he
used to restrain Jennings after Jennings had ceased to resist and
after Jennings had announced his prior ankle injury. That
increased use of force broke Jennings' ankle. Our acceptance of
these facts is no legal fiction. It is an acknowledgment of the
deference that we must give to juries in the performance of their
fact-finding role.
With this controlling legal principle in mind, and the
view of the evidence required by that principle, we turn to the
legal question of Jones' entitlement to qualified immunity. Our
review is de novo. Whitfield, 431 F.3d at 6.
III.
The Supreme Court explained the process for determining
qualified immunity in Saucier v. Katz, 533 U.S. 194 (2001).
Saucier held that a court first must determine whether "the facts
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alleged show the officer's conduct violated a constitutional
right." Id. at 201. Second, the court must determine whether the
right was "clearly established" so that "it would be clear to a
reasonable officer that his conduct was unlawful in the situation
he confronted." Id. at 201-02. The Supreme Court emphasized that
the constitutional question must be decided before determining
whether the right was clearly established to facilitate the
elaboration of the law. See id. at 201.
We have typically applied Saucier using a three-part test
in which we inquire:
(1) whether the claimant has alleged the
deprivation of an actual constitutional right;
(2) whether the right was clearly established
at the time of the alleged action or inaction;
and (3) if both of these questions are
answered in the affirmative, whether an
objectively reasonable official would have
believed that the action taken violated that
clearly established constitutional right.
Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 141 (1st Cir. 2001);
see also Wilson v. City of Boston, 421 F.3d 45, 52 (1st Cir. 2005).
Although this inquiry subdivides the second prong of the Saucier
analysis into two separate questions, it is functionally identical
to that analysis. Thus, we turn to this three-pronged inquiry,
mindful of our obligation to evaluate any disputed evidence in the
light most favorable to the jury verdict. Specifically, as we have
already explained, we must take the view that Jones increased the
pressure on Jennings' ankle after Jennings stopped resisting the
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officers and stated that the force used was hurting his previously
injured ankle.
A. Prong One: The Constitutional Violation
In granting Jones' motion for judgment as a matter of
law, the district court indicated that Jennings had not presented
sufficient evidence for a reasonable jury to find that Jones had
used excessive force in violation of the Constitution.12 To explore
this question, we must first examine what constitutes excessive
force under the Fourth Amendment, and then determine whether the
evidence presented here was sufficient to support the jury verdict.
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. See
Graham v. Connor, 490 U.S. 386, 397 (1989). 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." Id. at 396. The
reasonableness inquiry is objective, to be determined "in light of
12
Appropriately, the jury was not asked to address the
qualified immunity issue. Nevertheless, in delivering the general
verdict on Jennings' claim of excessive force under the Fourth
Amendment, the jury essentially was addressing the first prong of
the qualified immunity inquiry. Because we now address the
question of qualified immunity after this jury verdict for the
plaintiff, our task on the first prong of the qualified immunity
analysis is to “inquire whether the evidence at trial, viewed in
the light most favorable to the verdict, is legally sufficient to
support the jury’s verdict that the plaintiff was deprived of a
constitutional right.” Wilson, 421 F.3d at 54.
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the facts and circumstances confronting [the officers], without
regard to their underlying intent or motivation." Id. at 397.
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." Id. at 396.
We recognize the difficult situation confronting the
police. It is undisputed that Jennings was challenging authority
and resisting arrest. For much of the struggle, the police could
not see Jennings' hands, and they reasonably could have believed
that he might have a weapon. In making an arrest, a police officer
has "the right to use some degree of physical coercion or threat
thereof to effect it." Id. The fact that Jennings' ankle was
broken does not, in itself, prove a constitutional violation:
"[T]he use of force is an expected, necessary part of a law
enforcement officer's task of subduing and securing individuals
suspected of committing crimes." Lee v. Ferraro, 284 F.3d 1188,
1200 (11th Cir. 2002).
However, the focus of Jennings' excessive force claim was
not merely Jones' use of force, but rather Jones' increased use of
physical force after Jennings had ceased resisting for several
seconds and stated that the force Jones was using was hurting his
previously injured ankle. Jennings used one of Jones' own
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witnesses to help establish that such force was unreasonable.
Defendants initially called Officer Delaney, an instructor at the
Rhode Island State Police Training Academy, to provide testimony
about the training of officers and the use of various restraint
techniques. During Jennings' cross-examination the parties agreed
to treat Delaney as an expert witness.13 Delaney testified that
the ankle turn control technique is taught to police officers as "a
compliance technique and a restraint technique devised to control
somebody from kicking." These techniques are taught in conjunction
with the "Use of Force Continuum," a chart explaining that the
degree of force that an officer uses should correlate with the
degree of resistance offered by the arrestee. On cross-
examination, Delaney testified that it was appropriate for an
officer to continue to apply the ankle turn control technique after
a suspect stops kicking:
Q: [If] Adam Jennings is not kicking and his
hands have been put behind his back and
13
During the government's direct examination of Delaney,
Jennings' attorney objected to certain questions because Delaney
had not been qualified as an expert. The record does not disclose
why the government had not qualified Delaney as an expert, but the
court sustained Jennings' objections on these grounds. However, on
cross-examination Jennings' attorney also attempted to ask Delaney
questions that would ordinarily require expert qualifications.
When the government objected, Jennings' attorney indicated that he
now wanted Delaney to be qualified as an expert. The court stated
that if Jennings wanted to use Delaney as an expert, the government
would also have the opportunity, on redirect, to ask the questions
requiring expert qualifications to which Jennings had originally
objected. The parties agreed to this arrangement, and the court
subsequently allowed both parties to use Delaney as an expert.
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officers are attempting to put the flex cuffs
on him . . . would it be appropriate for an
officer in the position of Trooper Jones to
still be twisting his ankle?
A: It would be appropriate for him to maintain
that control over the leg.
(Emphasis added.)
However, Delaney's testimony about the continuum of force
also supports the view that it would be unreasonable for an officer
to increase his use of force when an arrestee has ceased to resist.
Delaney testified during cross-examination that the continuum of
force was a "two way street," meaning that, if the level of
resistance changes, the level of force should be adjusted upward or
downward correspondingly:
Q: [E]ven if an officer feels at one point in
time that one level of force is appropriate,
he is supposed to adjust the amount of force
he uses in response to a lessening of the
arrestee; isn't that true?
A: Yes. That would be the Trooper's own
assessment of where that lies, yes, sir.
Still on cross-examination, Delaney testified further:
Q: You don't get stuck at any level, an
officer has to be cognizant of what's going on
during the arrest and adjust his use of force
accordingly, right?
A: Correct.
The district court's jury instructions noted that a factor in
determining excessive force is whether "the degree of force used
and also whether the degree of force was proportional to what was
-22-
appropriate under the circumstances." Moreover, Jennings' closing
argument specifically connected the content of Delaney's testimony
to Jones' increased use of force:
Now, the Judge is going to instruct you that,
as does the Use of Force Continuum . . . what
goes up can come down and should come down if
there's no need any longer to be applying that
kind of force. Now, Adam Jennings himself has
testified that he was on the floor, he was
saying to somebody . . . you're breaking my
ankle or I just had surgery. And you heard
testimony that the immediate response was [] a
greater application of force than there
already had been . . . .
Thus, guided by the court's instructions on proportional force, the
jury could conclude from Delaney's testimony that it would have
been unreasonable for an officer to increase the pressure on
Jennings' ankle several seconds after Jennings stopped resisting
arrest and, moreover, stated that the pressure already applied was
hurting his previously injured ankle.
The district court considered Delaney's testimony. It
noted that "Delaney did acknowledge that the continuum of force was
a 'two-way street,' meaning that, if the level of resistance
changes, the level of force used should be adjusted upward or
downward to correspond to what is appropriate at the level of
resistance." Critically, though, the court failed to relate
Delaney's testimony to the view of the evidence that we must take
in light of the jury verdict. It explained that "Delaney testified
that it would have been appropriate for Jones to maintain the ankle
-23-
turn control technique even if Jennings was not kicking and the
officers were 'just trying to get the flex cuffs on him.'"
(Emphasis added.) However, Jones did not simply maintain the ankle
turn control technique after Jennings gave up resistance; rather,
he increased pressure to the point that he broke Jennings' ankle.
In finding that a reasonable jury could not have
concluded that Jones used excessive force, the district court
relied on our decision in Isom v. Town of Warren, 360 F.3d 7 (1st
Cir. 2004). In that case, the police used pepper spray on Robert
Isom, a "distraught, seemingly suicidal man, who had briefly held
two hostages and was refusing to comply with continuous officer
requests that he put down an axe." Id. at 11. After the spray
stopped, Isom “responded not by dropping to the ground, as the
officer had hoped, but by raising the axe and running toward two
officers.” Id. at 8. The officers then shot and killed Isom. Id.
At trial, the representative of Isom's estate argued that
the use of pepper spray in that situation was “a colossal
misjudgment, resulting in a needless and wrongful death,” and that
no reasonable officer would have used pepper spray under such
circumstances. Id. However, we found this argument inadequately
supported because “[i]n the presence of such danger, the plaintiffs
could not prevail at trial without providing evidence that would
bring into question the officers' judgment call to use pepper
spray." Id. at 11. Because the plaintiff did not present any such
-24-
evidence, we found that "[t]here was no evidence from which the
jury could rationally draw the conclusion that the officers'
actions were objectively unreasonable." Id. at 12.
The district court held that this case is "markedly
similar to Isom," quoting Isom's explanation for finding that the
plaintiff had not presented sufficient evidence:
No expert testified that, under the
circumstances faced by Detective Clancy, no
reasonable officer would have used pepper
spray; in fact, the plaintiffs did not produce
any expert testimony at all. Nor did the
plaintiff produce any written policy or text
stating that the use of pepper spray in
circumstances such as those faced by Clancy
was not reasonable.
Id. The district court also emphasized Isom's holding that, "[f]or
the jurors to have been given an opportunity to exercise their
common sense on the ultimate question of whether no objectively
reasonable officer would have used pepper spray, there must have
been some basis in the evidence on which to ground that
determination." Id. Relying on these propositions from Isom, the
district court found that
there was an absence of any evidence that 'no
objectively reasonable officer' would have
used the level of force used by Jones and,
therefore, the jury unfairly was put in the
untenable position of trying to decide that
question without sufficient evidence of the
applicable standard for measuring the
lawfulness of Jones' conduct.
As a result, the district court concluded that in this case, as in
Isom, there was no basis in the evidence to support a jury finding
-25-
of excessive force.14
Contrary to the district court's assessment, this case
differs from Isom in two important respects. First, in contrast to
the plaintiff in Isom, Jennings did provide expert testimony about
the use of force. He directed the jury to the testimony of Officer
Delaney on the Use of Force Continuum, a concept relevant to the
court's own instructions about the proportionality of force under
the circumstances. As described above, Jennings’ closing argument
emphasized that “the Judge is going to instruct you that, as does
the Use of Force Continuum, like I said, what goes up can come down
and should come down if there's no need any longer to be applying
that kind of force.” Thus, unlike the plaintiff in Isom, Jennings
explicitly directed the jury to expert testimony in the record that
could assist the jury in determining that no reasonable officer
under the circumstances Jones confronted would have applied more
pressure to Jennings’ ankle.
We acknowledge that the expert testimony in this case was
not precisely the sort described in Isom. As the district court
noted, "[n]o expert testified that, under the circumstances faced
14
The dissent claims that we do a "disservice" to the district
court by stating that the district court would have reached a
different conclusion from the jury on the excessive force issue.
However, the district court explicitly included in its qualified
immunity analysis the conclusion that "Jennings failed to present
any evidence that Jones' actions deviated from the standard of
conduct that should have been expected from an objectively
reasonable police officer under the circumstances.” This statement
is equivalent to a holding that there was no excessive force.
-26-
by [Jones], no reasonable officer would have" acted as Jones did.
Isom, 360 F.3d at 12. In fact, Delaney testified to the contrary
on redirect examination by the government:
Q. Did Officer Ken Jones use force that you
would consider reasonable under the
circumstances?
A. Yes.
However, Officer Delaney's testimony in response to the next few
questions makes clear that he did not make his assessment with the
relevant factual circumstances in mind. When asked what factors
informed his finding of reasonableness, Delaney explained:
The fact that, you know, the suspect did not
comply with the order of arrest, that he was
assaultive, he was trying to kick the Trooper
and he was offering enhanced defiance by
bringing his arms in, at that point the
appropriate application of force, which was
the technique employed by Trooper Jones.
(Emphasis added.) The factors Delaney lists all occurred prior to
the time that Jennings ceased to resist, and Delaney’s testimony
thus indicates only that the use of force was reasonable "at that
point" in time. Given that, viewing the evidence in the light most
favorable to the verdict, Jones increased the force he used after
Jennings ceased resisting, Delaney's expert testimony about the Use
of Force Continuum actually supports a finding that the force Jones
used was excessive.
Second, although this case happened to include expert
testimony by Officer Delaney, we do not read Isom to require such
-27-
testimony to support a finding that an officer’s use of force was
unreasonable.15 Isom requires only that “there must have been some
basis in the evidence on which to ground” a finding of excessive
force, leaving open the possibility that some cases may be
susceptible to a common sense determination by the jury. Isom
itself involved pepper spray, a substance whose use may be
unfamiliar to many jurors, and consequently the question of whether
it is reasonable to use pepper spray in an attempt to subdue a
distraught but threatening suspect may have been best addressed
through expert testimony. By contrast, this case involves the
common sense proposition that it is not reasonable for police
officers to increase their use of physical force after an arrestee
who has been resisting arrest stops resisting for several seconds
and warns the officers that they are hurting his previously injured
ankle. Although Officer Delaney did not offer expert testimony
that no reasonable officer would have acted as Jones did under the
circumstances, he did offer expert testimony that gave the jury a
useful framework for thinking about the excessive force issue.
Thus informed, the jurors were in a better position to apply their
15
Jennings argues that the district court erred in requiring
expert testimony to prove excessive force. However, the district
court did not actually impose this requirement. Instead, it noted
that the jury had to have "sufficient evidence of the applicable
standard for measuring the lawfulness of Jones' conduct." We read
this as a requirement that Jennings produce some evidence, whether
in the form of expert testimony, lay testimony, or other evidence,
from which the jury could evaluate the reasonableness of Jones'
conduct.
-28-
common sense to the facts of this case.16
Other courts have recognized that some factual scenarios
permit common sense determinations by the jury as to whether the
police used excessive force. In Kopf v. Skyrm, 993 F.2d 374, 379
(4th Cir. 1993), the Fourth Circuit noted:
[A] blanket rule that expert testimony is
generally admissible in excessive force cases
would be just as wrong as a blanket rule that
it is not.
The facts of every case will determine
whether expert testimony would assist the
jury. Where force is reduced to its most
primitive form - the bare hands - expert
testimony might not be helpful.
See also Adewale v. Whalen, 21 F.Supp.2d 1006, 1014 (D.Minn. 1998)
(“If plaintiff's version of the facts is believed, the jury could
conclude without expert testimony that [defendant] used excessive
force, and that his actions caused plaintiff's broken arm.”). This
case, involving force applied with bare hands, did not require
expert testimony to establish whether the force used was
reasonable.
In keeping with our decision in Isom, a reasonable jury
could have exercised its common sense, informed by Officer
Delaney's expert testimony, to find that Jones used excessive force
by increasing pressure on Jennings’ ankle after Jennings stopped
16
We are not suggesting that Officer Delaney's expert
testimony was or was not essential to the submission of the
excessive force issue to the jury. We are simply explaining how
that testimony might have been useful to the jury in this case.
-29-
resisting for several seconds and stated that Jones was using force
that hurt his previously injured ankle. Consequently, we conclude
that Jones violated Jennings' Fourth Amendment right to be free
from an unreasonable seizure.
B. Prong Two: Whether the Law Was Clearly Established
The second prong of the qualified immunity analysis asks
"whether the constitutional right . . . was 'clearly established'
at the time of the incident such that it would 'be clear to a
reasonable officer that his conduct was unlawful in the situation
he confronted.'" Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 65
(1st Cir. 2004) (quoting Saucier, 533 U.S. at 202). We consider
whether existing case law gave the defendants "fair warning that
their conduct violated the plaintiff's constitutional rights."
Suboh v. Dist. Attorney's Office of Suffolk, 298 F.3d 81, 93 (1st
Cir. 2002). In other words, the law is clearly established either
if courts have previously ruled that materially similar conduct was
unconstitutional, or if "a general constitutional rule already
identified in the decisional law [applies] with obvious clarity to
the specific conduct" at issue. United States v. Lanier, 520 U.S.
259, 271 (1997). We therefore consider whether materially similar
cases or general Fourth Amendment principles gave Jones fair
warning that it was unconstitutional for police officers to
increase their use of physical force after an arrestee who has been
resisting arrest stops resisting for several seconds and warns them
-30-
that they are hurting his previously injured ankle.
We conclude that Jones had such notice. In Smith v.
Mattox, 127 F.3d 1416 (11th Cir. 1997), the Eleventh Circuit denied
qualified immunity to a police officer accused of breaking the
plaintiff's arm while putting on handcuffs.17 According to the
plaintiff, he was at his mother's house when a uniformed police
officer, acting on a tip from an informant, entered the yard. The
plaintiff then "raised [a] baseball bat in a threatening posture"
and ignored the officer's order to drop it. Id. at 1418. When the
officer threatened to shoot, the plaintiff fled. He soon
encountered the police officer again, and then plaintiff "docilely
submitted to arrest upon [the officer's] request for him to 'get
down.'" Id. In the process of putting on handcuffs, the officer
bent the plaintiff's arm in a way that caused discomfort. Id.
When the plaintiff complained, the police officer, "with a grunt
and a blow - but no sign of anger," broke his arm so severely that
it required surgery for multiple fractures. Id. The court
concluded that such use of force would be excessive and that the
officer was not entitled to qualified immunity. Id.
Although Smith helps to demonstrate that the law
17
Since the court's ruling was made in the context of summary
judgment, it took the facts in the light most favorable to the
plaintiff. 127 F.3d at 1417. The point seemingly made by the
dissent about this case (that a jury might not ultimately find
those facts) does not undermine the value of the case as indicative
of clearly established law.
-31-
protecting Jennings from Jones' increased use of force was clearly
established, our conclusion does not depend on this strikingly
similar case. Instead, Smith emphasizes the obvious
unconstitutionality of increasing the force used on an arrestee to
such a degree that a broken ankle results, after the arrestee has
ceased resisting for several seconds and stated that the force
already used is hurting his previously injured ankle. The Supreme
Court has explained that
general statements of the law are not
inherently incapable of giving fair and clear
warning, and in other instances a general
constitutional rule already identified in the
decisional law may apply with obvious clarity
to the specific conduct in question, even
though 'the very action in question has [not]
previously been held unlawful.'
Lanier, 520 U.S. at 271 (1997)(citation omitted). Accordingly, we
conclude that Jones' conduct was such an obvious violation of the
Fourth Amendment's general prohibition on unreasonable force that
a reasonable officer would not have required prior case law on
point to be on notice that his conduct was unlawful. Indeed, even
in Smith, which was decided six years before the incident at issue
here, the court concluded that the law was clearly established
against the use of increased force on a suspect no longer offering
resistance because "the unlawfulness of the conduct is readily
apparent even without clarifying caselaw." 127 F.3d at 1420.18
18
The dissent misconstrues the Supreme Court's precedents
relating to qualified immunity when it states that "[t]he very
-32-
Other circuits have rejected qualified immunity without
a prior case exactly on point. In Rice v. Burks, 999 F.2d 1172
(7th Cir. 1993), the Seventh Circuit noted that a plaintiff can
defeat a qualified immunity defense
without identifying a closely analogous case
if he show[s] that the force used was so
plainly excessive that the police officers
should have been on notice that they were
violating the Fourth Amendment. Indeed,
police officers should not be shielded from
liability just because their excessive use of
force happens to be original.
Id. at 1174 (internal citations omitted). Similarly, other courts
have found that case law is not required where the constitutional
violation is obvious. See, e.g., Gray ex rel. Alexander v. Bostic,
458 F.3d 1295, 1306 (11th Cir. 2006)(rejecting qualified immunity
for handcuffing compliant nine-year-old girl because "[e]ven in the
absence of factually similar case law, an official can have fair
warning that his conduct is unconstitutional when the
constitutional violation is obvious"); Smith, 127 F.3d at 1419
(stating that law is clearly established when "the official's
fact-intensive nature of the test for excessive force itself
requires particularized prior case law." It is true that the
"right allegedly violated must be defined at the appropriate level
of specificity before a court can determine if it is clearly
established," Wilson v. Layne, 526 U.S. 603, 615 (1999)(emphasis
added), but this requirement does not imply that the relevant case
law must be particularized to address the alleged violation.
Rather, once the right allegedly violated has been defined, the
court must examine whether "the unlawfulness of particular conduct
will be apparent ex ante to reasonable public officials." See
Brady v. Dill, 187 F.3d 104 (1st Cir. 1999)(citing Wilson, 526 F.3d
at 613).
-33-
conduct lies so obviously at the very core of what the Fourth
Amendment prohibits that the unlawfulness of the conduct was
readily apparent to the official, notwithstanding the lack of case
law"); Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993)
(stating that plaintiffs may show that the violation was clearly
established using "either a closely analogous case or evidence that
the defendants' conduct is so patently violative of the
constitutional right that reasonable officials would know without
guidance from the courts").
Although the dissent professes to accept, arguendo, that
Jones increased the force he used to restrain Jennings after
Jennings had ceased resisting for several seconds, it continues to
describe a different version of events with the cases it cites to
show that the law was not clearly established. Some of these cases
involve the use, rather than the increase, of force.19 Others are
inapplicable because the arrestee was still resistant.20
Critically, these cases do not address the key conduct at issue
here: the increased use of force on a previously resisting but now
19
Rodriguez v. Farrell, 294 F.3d 1276, 1278-79 (11th Cir.
2002); Jackson v. City of Bremerton, 268 F.3d 646, 650-53 (9th Cir.
2001); Eberle v. City of Anaheim, 901 F.2d 814, 820 (9th Cir.
1990).
20
Huang v. Harris County, No. 00-20806, 2001 WL 822534 (5th
Cir. June 22, 2001)(unpublished disposition); Brownell v. Figel,
950 F.2d 1285, 1288, 1293 (7th Cir. 1991).
-34-
non-resisting arrestee.21 The dissent's reliance on such cases
demonstrates its refusal to acknowledge that Jones' increased use
of force was integral to Jennings' excessive force claim and that,
consistent with our obligation to take the facts in the light most
favorable to the jury verdict, we must accept this version of the
facts in evaluating qualified immunity.
When an individual has been forcibly restrained by
several officers, has ceased resisting arrest for several seconds,
and has advised the officers that the force they are already using
is hurting a previously injured ankle, we cannot think of any basis
for increasing the force used to such a degree that a broken ankle
results. At the time of Jones' action, both existing caselaw and
general Fourth Amendment principles had clearly established that
this use of force was excessive in violation of the Constitution.
D. Prong Three: Whether a Reasonable Officer Would Have
Believed a Violation Occurred
The final prong of the qualified immunity analysis is
"whether an objectively reasonable official would have believed
that the action taken violated that clearly established
constitutional right." Starlight, 253 F.3d at 141. As we have
previously explained, “[i]t is not always evident at the time an
official takes an action that a clearly established right is
21
Indeed, the dissent's insistence on "particularized prior
cases with similar facts," see supra note 18, is inconsistent with
its use of these cases, which, for the reasons already stated,
differ significantly from the circumstances present here.
-35-
involved. For example, the factual situation might be ambiguous or
the application of the legal standard to the precise facts at issue
might be difficult.” Riverdale Mills, 392 F.3d at 61. Thus, even
if an officer's conduct violated clearly established Fourth
Amendment law, he may still be eligible for qualified immunity if
he was reasonably mistaken as to the degree of force he should have
used.
At first glance, this inquiry appears indistinguishable
from that in the first prong. Both involve the reasonableness of
the officer's conduct. However, the key distinction is that prong
one deals with whether the officer's conduct was objectively
unreasonable, whereas prong three deals with whether an objectively
reasonable officer would have believed the conduct was
unreasonable. See Saucier, 533 U.S. at 204-05 (explaining that
"claims of excessive force in the context of arrests . . . should
be analyzed under the Fourth Amendment's 'objective reasonableness
standard'" but that "[i]f the officer's mistake as to what the law
requires is reasonable . . . the officer is entitled to the
immunity defense" (internal citation omitted)).
The third prong analysis seems nonsensical at first blush
because, in effect, officers receive protection if they acted
reasonably in exercising unreasonable force. In Anderson v.
Creighton, 483 U.S. 635, 643 (1987), the Supreme Court acknowledged
the argument made by the appellant in that case that “[i]t is not
-36-
possible . . . to say that one ‘reasonably’ acted unreasonably.”
However, the Court excused this apparent contradiction as merely
linguistic, explaining:
We have frequently observed, and our many
cases on the point amply demonstrate, the
difficulty of determining whether particular
searches or seizures comport with the Fourth
Amendment. Law enforcement officers whose
judgments in making these difficult
determinations are objectively legally
reasonable should no more be held personally
liable in damages than should officials making
analogous determinations in other areas of
law.
Id. at 644 (internal citation omitted). Thus, qualified immunity
affords protection to officers who reasonably, yet mistakenly,
employ excessive force in violation of the Fourth Amendment.
Again, we are sympathetic to the situation that Jones
confronted. Jennings had to be subdued while he was resisting
arrest, and the chaos caused by his struggle may have made it
difficult for Jones to gauge the appropriate level of force. These
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.
However, we reiterate that we must take the facts in the
light most favorable to the jury verdict. See, e.g., Iacobucci v.
Boulter, 193 F.3d 14, 23 (1st Cir. 1999). Thus, we accept that
-37-
Jones increased, rather than merely maintained, the force he
applied to Jennings' ankle, even after Jennings had ceased
resisting and stated that Jones was hurting his previously injured
ankle.22
Under such circumstances, even the "added measure of
protection" provided by the third prong of the qualified immunity
analysis does not insulate Jones from damages. Cox v. Haney, 391
F.3d 25 (1st Cir. 2004). We find that an objectively reasonable
officer in Jones' circumstances would not have believed that it was
lawful to increase the amount of force that he used after Jennings
ceased resisting and stated that Jones was hurting him.23
Because the first and third prongs of the qualified
immunity analysis are so closely related in these Fourth Amendment
22
See supra Section II for a description of the evidence on
this point.
23
The dissent argues that Jones’ use of force was justified
because Jennings was not totally secured at the time his ankle was
broken and the officers were having a difficult time getting the
flex cuffs on Jennings. The more important point, however, is that
Jennings had ceased resisting before Officer Hill got up and walked
away, and, as shown on the video, several seconds elapsed between
the time that Officer Hill left and the time that Jennings yelled
in pain as his ankle was broken. Thus, any difficulty or delay
that the officers experienced in handcuffing Jennings was not due
to resistance on Jennings’ part, and does not alter our conclusion
that an objectively reasonable officer in Jones’ circumstances
would not have believed that it was lawful to increase force after
Jennings ceased resisting and stated that the restraint was hurting
his previously injured ankle. Relatedly, the dissent's statement
that "Hill got out of the way because other officers were having
trouble cuffing Jennings" incorrectly suggests that Jennings was
still resisting when Hill got up and walked away.
-38-
excessive force cases, the evidence that supports our conclusion on
the first prong, that a reasonable jury could have found that the
force Jones used was unreasonable, is likewise relevant here, on
the third prong, to demonstrate that an objectively reasonable
officer in Jones' position would have believed that the force used
was unreasonable. More specifically, Officer Delaney's testimony
about the training that officers receive and the Use of Force
Continuum is relevant both to the prong one question of whether
there was a violation at all and to the prong three question, which
we address here, of whether a reasonable officer in Jones'
circumstances would have believed that his conduct violated the
Constitution.
Officer Delaney's testimony about the training that
officers undergo and the Use of Force Continuum made clear that
officers should adjust their force in a manner proportional to the
resistance offered by the arrestee. Instead, Jones adjusted his
force inversely, increasing the force he used after Jennings
stopped resisting and stated that the restraint was causing him
pain. Under such circumstances, a reasonable officer would have
believed that increasing his use of force would violate Jennings'
constitutional right to be free from excessive force.24
24
In our discussion of prong one, we were careful to point out
that we were not suggesting that Delaney's testimony was or was not
essential to the jury's determination that the force used by Jones
was excessive. We simply explained how that testimony could have
been helpful to the jury in reaching its excessive force verdict.
-39-
The district court concluded that Jones was entitled to
qualified immunity because a reasonable officer in his position
would not have believed that his conduct violated Jennings'
constitutional rights. However, this conclusion again indicates
that the court did not construe the facts in the light most
favorable to the jury verdict. In discussing the third prong of
the qualified immunity analysis, the court stated that "the
evidence clearly demonstrates that, even if he was mistaken, Jones
reasonably could have believed that his utilization of the ankle
turn control technique was lawful." (Emphasis added.) As we have
repeatedly emphasized, the conduct at issue was not the mere
utilization of the technique, but rather the increase of force
after Jennings ceased resisting. It is this increased force that
an objectively reasonable officer would not have believed was
lawful.
The dissent once again avoids the central issue - Jones'
use of increased force on a nonresisting arrestee - by describing
Jones' conduct and Delaney's testimony in sanitized terms. It
states that "Jones testified that he tried to secure Jennings'
ankle," emphasizes Delaney's testimony that "it was appropriate for
We make a similar point here. The Delaney testimony is certainly
relevant to the prong three determination that was to be made by
the court: whether a reasonable official would have believed that
the force being used was excessive. However, we are not suggesting
that this testimony was or was not essential to that legal
determination.
-40-
Jones to continue using the same compliance technique," and refers
repeatedly to the "use" of the ankle turn control technique.
(Emphases added.) These characterizations ignore the view of the
facts we must take in light of the jury verdict and, consequently,
result in a misapplication of the qualified immunity analysis.
In light of the circumstances, we hold that a reasonable
officer in Jones' position would have believed that increasing the
force with which he restrained Jennings was a violation of
Jennings' constitutional right to be free from excessive force.
Thus, Jones is not entitled to qualified immunity.
IV.
We conclude that the district court erred in granting
judgment as a matter of law to appellee Jones based on qualified
immunity. Jones' use of increased force after Jennings ceased
resisting violated the Fourth Amendment, the law was clearly
established, and a reasonable officer in Jones' circumstances would
have believed that his conduct was a violation. Therefore, we
vacate the district court's decision on that motion and reinstate
the jury verdict.
At the close of trial, in addition to his motion for
judgment as a matter of law, Jones filed alternative motions for a
new trial and a remittitur. After granting his motion for judgment
as a matter of law, the district court held that the alternative
motions were moot. This holding was error. Federal Rule of Civil
-41-
Procedure 50(c)(1) requires the district court to rule
conditionally on such motions in the event that the grant of
judgment as a matter of law is overruled on appeal.
We now remand to the district court for a ruling on the
undecided motions. However, since we already have vacated the
district court's ruling on Jones' motion for judgment as a matter
of law, its ruling on the other motions will not be conditional.
Instead, it will control the future course of proceedings. We do
not retain jurisdiction over the case.
So ordered.
- Dissenting Opinion Follows -
-42-
LYNCH, Circuit Judge, dissenting. With respect, I
dissent.
The majority opinion holds that a trial court, to whom
the ultimate decision on qualified immunity is granted, erred in
granting qualified immunity; it committed error, the majority says,
because a jury found by a general verdict that Officer Jones had
used excessive force.
I. Relevant History
It is worth explaining how this situation, which arose
from a mistake by the trial judge (which the judge later
acknowledged), came to pass.
The plaintiffs were permitted to amend their complaint
shortly before the deadline for filing pretrial motions to give
names to the John Doe state trooper defendants, including Officer
Jones, and bring suit against them in their individual capacities.
By the time of the pre-trial conference, the district court had
apparently indicated a disinclination to resolve the matters of
defense by summary judgment, noting that light would be shed on the
facts at trial.
At the close of the plaintiff's evidence at trial, the
officers moved for a ruling on their defenses, including the
qualified immunity defense under Rule 50. The district court
granted JMOL to defendants on a number of claims but, apparently
-43-
overlooking the immunity issue, said the remaining claims stated an
issue for the jury. At the close of all the evidence, but before
the verdict, the remaining defendants renewed their motion for
JMOL. The court granted judgment to all but three defendants,
including Jones. After the verdict, the court ruled that it had
erred in not granting the Rule 50 JMOL motion with respect to the
§ 1983 excessive force claim and the state law battery claim
against Jones. Jennings v. Pare, No. 03-572-T, 2005 WL 2043945, at
*5 (D.R.I. Aug. 24, 2005).
The jury returned a verdict against Jones on the
excessive force claim under the Fourth Amendment and awarded
damages of $301,100. The jury verdict simply stated, "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 which the jury
answered to make specific findings of fact.
After the jury verdict, Jones filed three motions: for
remittitur under Rule 59(e); for JMOL under Rule 50(b); and for a
new trial under Rule 59. The trial court allowed Jones' motion for
JMOL and decided that the other two motions were, accordingly,
moot. Id. at *1. Judgment was entered for Jones simultaneously
with the court's ruling on the three motions. In light of the
requirements of Rule 50(c)(1), the court erred in holding the new
-44-
trial motion was moot; it should have ruled on the merits of the
new trial motion.
In granting JMOL, the court held that despite the jury
verdict Officer Jones was nonetheless entitled to immunity. Id.
The district court found that, accepting that the force used was
unreasonable and excessive, the officer was entitled to immunity
under the second and third prongs of the analysis because (1)
clearly established law did not fairly warn the officer his actions
were unconstitutional, and (2) even if the law was clearly
established so as to give the officer fair notice that his actions
were unconstitutional, the court still concluded that "Jones
reasonably could have believed that his utilization of the ankle
turn control technique was lawful." Id. at *10-11.
II. Qualified Immunity
Appellate review of the immunity conclusion is de novo.
Whalen v. Mass. Trial Court, 397 F.3d 19, 23 (1st Cir. 2005).
Two particular rules apply in this situation. Under
Hunter v. Bryant, 502 U.S. 224 (1991), the question of immunity is
an issue for the trial court, not the jury, to determine. Id. at
228. The Supreme Court has not yet addressed the question of what
role jury findings play in the judicial immunity determination, nor
has this circuit. See, e.g., Kelley v. LaForce, 288 F.3d 1, 7 n.2
(1st Cir. 2002) ("[T]he Supreme Court has not clearly indicated
whether the judge may act as fact-finder when there is a factual
-45-
dispute underlying the qualified immunity defense or whether this
function must be fulfilled by a jury."); Ringuette v. City of Fall
River, 146 F.3d 1, 6 (1st Cir. 1998) ("Something of a 'black hole'
exists in the law as to how to resolve factual disputes pertaining
to qualified immunity when they cannot be resolved on summary
judgment prior to trial."). No clear answer has emerged from the
circuits. Gasperini v. Center for Humanities, Inc., 518 U.S. 415
(1996), cited by the majority, is not an immunity case and does not
resolve this question, which we have recognized as being open in
the years since Gasperini was decided.
Secondly, the merits inquiry about whether an officer
used excessive force does not resolve the immunity inquiry.
Saucier v. Katz, 533 U.S. 194, 204-06 (2001). A holding on the
merits is not dispositive of the issue of qualified immunity.
Cookish v. Powell, 945 F.2d 441, 443 (1st Cir. 1991). Thus,
whatever deference is owed to the jury findings on prong one of
immunity, the court was free to grant immunity, as it did, on
prongs two and three. The officer here could both have applied
excessive force and, at the same time, be entitled to immunity: an
officer in Jones' position could have reasonably believed he was
not violating constitutional rights. Saucier, 533 U.S. at 206.
The district court recognized this, and there is no inconsistency
between its conclusion that Jones is entitled to immunity and the
jury verdict.
-46-
The district court summarized its reasons for granting
immunity25:
First, Jennings failed to present any evidence
that Jones' actions deviated from the standard
of conduct that should have been expected from
an objectively reasonable police officer under
the circumstances. Second, even if Jones' use
of the "ankle turn control technique" is
viewed as amounting to excessive force it did
not violate any "clearly established"
constitutional prohibition. Finally, the
undisputed evidence demonstrates that it was
"objectively reasonable" for Jones to believe
that he was acting lawfully.
Jennings, 2005 WL 2043945, at *5.
In reviewing the district court's grant of immunity on
JMOL, I assume arguendo that the evidence is taken in the light
most favorable to the jury verdict.26
25
Those reasons did not include the fact that the trial
court would itself have reached a different conclusion from the
jury on the excessive force issue. The district court, based on
its own assessments of the credibility of the witnesses and the
weight of the evidence, expressed its view that Jones had not used
excessive force. Jennings, 2005 WL 2043945, at *6. Nonetheless,
the district court expressly stated this was not the basis for its
immunity holding, acknowledging that a motion for JMOL does not
permit a court to make its own assessment regarding the weight of
the evidence. Id. at *7. The majority, however, states that "the
district court's qualified immunity analysis incorporated its
skepticism about the jury's fact-finding on the critical issue of
whether Jones increased his use of force." The majority does a
disservice to the district court by suggesting it did something it
expressly said it did not do.
26
Where we are reviewing a denial of qualified immunity by
a judge which is consistent with a jury verdict, we have said that
"the evidence must be construed in the light most hospitable to the
party that prevailed at trial." Iacobucci v. Boulter, 193 F.3d 14,
23 (1st Cir. 1999); see also Borges Colón v. Román-Abreu, 438 F.3d
1, 18 (1st Cir. 2006); Whitfield v. Meléndez-Rivera, 431 F.3d 1, 6
-47-
A. Effect of the Jury's Verdict
Two thoughts should be removed from the picture at the
outset. First, Jones did not break Jennings' ankle with reckless
or callous indifference to Jennings' federal rights. Second, he
did not knowingly violate the law. The jury verdict cannot, as a
matter of law, be taken to establish these points because they were
not elements of the claim that went to the jury. There was no
basis for punitive damages here. See Smith v. Wade, 461 U.S. 30,
56 (1983) (punitive damages under § 1983 available only "when the
defendant's conduct . . . involves reckless or callous indifference
to the federally protected rights of others"). Indeed, the law of
this case is that the evidence was insufficient to support such a
finding. See Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 210
(1st Cir. 2006). Although the amended complaint sought punitive
damages, the district court held that there was no basis in the
evidence to instruct the jury on the issue. Further, plaintiff did
not object to the lack of jury instructions on punitive damages,
and he does not challenge the omission of such instructions on
appeal. Moreover, on the evidence it is clear that Jones was not
"plainly incompetent," and he did not "knowingly violate the law."
(1st Cir. 2005). We have held that there is no prohibition on a
judge's reasonably accepting the jury's findings as his or her own
for purposes of qualified immunity. See Iacobucci, 193 F.3d at 23.
We have never explicitly discussed the reverse situation, where the
judge awards immunity in the face of a jury finding that there was
a constitutional violation. Jones has not made an argument as to
this point, so I bypass it.
-48-
Malley v. Briggs, 475 U.S. 335, 341 (1986). So denial of immunity
cannot rest on those grounds.
In my view, the majority's reversal of the trial judge's
grant of immunity undercuts the interests protected by the immunity
doctrine. The purposes of granting qualified immunity include:
avoiding "excessive disruption of government," Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); giving "a fairly wide zone of
protection in close cases," Roy v. Inhabitants of Lewiston, 42 F.3d
691, 695 (1st Cir. 1994); allowing officers "reasonably [to]
anticipate when their conduct may give rise to liability for
damages," Davis v. Scherer, 468 U.S. 183, 195 (1984); providing
"ample room for mistaken judgments," Malley, 475 U.S. at 343;
shielding officers from liability when the law did not clearly
proscribe the actions they took, Mitchell v. Forsyth, 472 U.S. 511,
528 (1985); and protecting "all but the plainly incompetent or
those who knowingly violate the law," Malley, 475 U.S. at 341. The
common theme of protecting reasonable judgment calls by officers,
such as this one, exists throughout qualified immunity law.
It is not inconsistent for an officer to have violated
constitutional rights, as the jury found here, but still be
entitled to immunity on the various prongs (described below) of the
immunity test. See Sallier v. Brooks, 343 F.3d 868, 871-72, 879-80
(6th Cir. 2003) (holding that prison clerks were entitled to
immunity despite jury verdict against them because it was not
-49-
clearly established at the time that mail from the courts was
protected "legal mail"); Figg v. Schroeder, 312 F.3d 625, 636-37
(4th Cir. 2002) (holding that officers were entitled to qualified
immunity on first prong of test despite jury verdict because
evidence at trial did not establish unreasonableness of seizures
under the Fourth Amendment); Clue v. Johnson, 179 F.3d 57, 60, 61-
62 (2d Cir. 1999) (holding that transit authority director was
entitled to immunity despite jury verdict for plaintiffs because
law was not clearly established at the time that plaintiffs'
activities were constitutionally protected from employer
retaliation); Warlick v. Cross, 969 F.2d 303, 310 (7th Cir. 1992)
(holding that, although jury found officer not to have had probable
cause for arrest, officer was entitled to immunity because law was
not clearly established as to circumstances in which officer found
himself).
The majority reasons that the jury, by its general
verdict, necessarily found that (1) Jennings had stopped resisting
and had announced his prior ankle injury, and (2) Jones nonetheless
increased the twisting pressure on Jennings' ankle and broke it.
The majority's reasoning entails a bit of legal fiction, since we
do not know what the jury found and these facts certainly were not
necessary to the verdict.27 On this record, there is considerable
27
The Supreme Court noted in Iacurci v. Lummus Co., 387
U.S. 86 (1967), reversing a court of appeals for entering JMOL, "We
do not share the Court of Appeals' confidence as to the meaning [of
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ambiguity and no certainty about what underlying factual
conclusions motivated the general verdict.
the jury verdict] in light of the trial court's instructions
. . . ." Id. at 87. Nothing in the jury instructions here
required that the jury necessarily base its verdict on the
majority's proposed factual findings. The district court quite
properly did not instruct that the theory of plaintiff's case
required these two findings. The jury was instructed that in
determining whether Jones used excessive force it could consider
whether Jennings posed a threat to the safety of others; whether
the threat was immediate and serious; whether Jennings was
disrupting the search of the smoke shop; whether Jennings was
actively resisting arrest; the degree of force used; the
seriousness of the offense for which Jennings was being arrested;
and whether the degree of force was proportional to what was
appropriate under the circumstances. Iacurci cannot be written off
as idiosyncratic, nor is it easily distinguishable.
Further, the facts themselves provide alternatives, and
it is far from obvious on what subsidiary facts the verdict rested.
The jury could have found that the seriousness of the injury, a
broken ankle, was not justified by the charges Jennings was
arrested on -- disorderly conduct. This theory was argued by
plaintiff's counsel at closing, and was consistent with the jury
instructions. Or the jury could have concluded that the
application of force sufficient to break Jennings' ankle was itself
excessive, whether or not Jennings had continued to resist, and
whether or not Jones increased the amount of force. The jury could
have concluded that it was unreasonable for Jones to maintain the
same force once Jennings said something about his ankle. Or it
could have concluded that Jones maintained the same level of force
when, in its view, that level was excessive to begin with. It may
also be, as the district court noted, that the jury concluded that
Jones "continued to twist Jennings' ankle after Jennings had
stopped resisting." Jennings, 2005 WL 2043945, at *6. That is not
a conclusion that Jones "increased" the pressure, and again shows
that the jury did not necessarily find the facts as the majority
assumes.
There is another reason not to conclude that the verdict
against Jones necessarily entailed the majority's two factual
findings. At the start of trial, there were seven individual
defendants. There were also three plaintiffs, including Jennings'
mother. These plaintiffs asserted twenty-one different claims. On
the six claims that went to the jury, the jury ruled against
plaintiffs on all claims except for the excessive force claim
against Jones. Jurors sometimes reach compromise verdicts.
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This is an important issue. It is true that where the
question is whether there is sufficient evidence to support a jury
verdict (the usual question on a motion for JMOL), the appellate
court will take all facts in favor of the verdict. But there is no
attack on the sufficiency of the jury verdict, as to at least the
second and third prongs of the immunity analysis. The attack is on
the trial judge's separate conclusion, a determination assigned to
the judge and not the jury, that Jones is entitled to immunity.
This raises the question of how the judge, in evaluating immunity,
is required to treat a general jury verdict, and that is precisely
the type of black hole in the law we discussed in Ringuette, 146
F.3d at 6, and in Kelley, 288 F.3d at 7 n.2.
Further, as a matter of logic, it does not necessarily
follow from a rule that a general verdict will be upheld by taking
facts in favor of the verdict when a number of theories could
support the verdict, that the jury has found a particular
combination of facts, or that the judge, on the immunity issue,
must deem the jury to have found particular facts. Indeed, the
majority acknowledges that the trial judge here thought the jury
verdict was based on a different theory and facts other than the
two facts the majority now insists were found.
These are important issues on which it would be helpful
to have guidance from the Supreme Court. But ultimately this case
need not resolve those issues because I believe the majority is
-52-
wrong, even within its own set of assumptions. Even if we assume,
arguendo,28 that the rule that facts must be taken in support of the
verdict permits the majority to assume its two facts, the district
court's finding of qualified immunity must nonetheless stand. I
will assume arguendo that Jennings met the first prong. Even so,
the officer is nonetheless entitled to immunity on the next two
prongs.29
B. Second Prong: Clearly Established Law
Officer Jones was undisputably acting within the scope of
his authority and his discretion. The burden then is on plaintiff
to demonstrate the existence of clearly established constitutional
law which the officer is said to have violated. Davis, 468 U.S. at
197; Horta v. Sullivan, 4 F.3d 2, 13 (1st Cir. 1993).
The second prong of the qualified immunity test asks
whether the constitutional right in question was "'clearly
established at the time of the alleged violation' such that a
reasonable officer would 'be on notice that [his] conduct [was]
unlawful.'" Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 61 (1st
28
In my view, the majority's focus on its two facts as
necessary findings does not represent "the jury's discernible
resolution of factual issues," Iacobucci, 193 F.3d at 23, but for
these purposes I will assume Iacobucci is satisfied.
29
The district court held, on the first prong, that the
jury verdict that there had been excessive force was not supported
by any evidence that no objectively reasonable officer would have
applied the ankle turn control technique as Jones did. Jennings,
2005 WL 2043945, at *7. It is not necessary to discuss this
finding.
-53-
Cir. 2004) (alterations in original) (quoting Suboh v. Dist.
Attorney's Office, 298 F.3d 81, 90 (1st Cir. 2002)); see also
Saucier, 533 U.S. at 202. This inquiry is a specific one, in which
it is necessary to consider the particular circumstances faced by
the officer. See Saucier, 533 U.S. at 201 ("This inquiry [under
the second prong] . . . must be undertaken in light of the specific
context of the case, not as a broad general proposition."); see
also Brosseau v. Haugen, 543 U.S. 194, 199-200 (2004); Suboh, 298
F.3d at 90. Although the facts of prior cases need not be "exactly
on all fours with the facts of this case" in order to conclude that
a right was clearly established, Suboh, 298 F.3d at 94, "the prior
case law must give the officer reasonable notice that the specific
conduct [he] is alleged to have committed in this litigation is
unlawful," Riverdale Mills, 392 F.3d at 66. Again, the burden is
on the plaintiff to make this showing, and the district court
correctly held that plaintiff had failed.
In the end, the majority's holding that the law was so
clearly established as to put the officer on clear notice that his
overall use of force, even increasing force, when the detainee had
stopped struggling (regardless of other circumstances) was
unconstitutional rests on two propositions. The first is that
clear notice is established by a single case from the Eleventh
Circuit which is said to be so close to this case as to have put
Jones on appropriate notice. The second is that there is no need
-54-
for particularized notice because notice of general principles is
enough. Indeed, the majority goes so far as to reason that it
should have been perfectly obvious to Jones that his use of force
was excessive, despite the fact that the only expert testimony was
directly to the contrary and the district court, which heard the
case, concluded otherwise. The jury verdict made no conclusion on
this issue, nor could it have.
1. Lack of Prior Case Law
There is no First Circuit case which gave Jones
appropriate notice, nor is there a clear consensus of other
persuasive authority giving such notice.
To start, a single opinion from another circuit is not,
as a matter of law, sufficient to meet the plaintiff's burden of
showing the law is clearly established. In Wilson v. Layne, 526
U.S. 603 (1999), the Supreme Court concluded that the law on a
particular issue was not clearly established, and stated:
[Plaintiffs] have not brought to our attention
any cases of controlling authority in their
jurisdiction at the time of the incident which
clearly established the rule on which they
seek to rely, nor have they identified a
consensus of cases of persuasive authority
such that a reasonable officer could not have
believed that his actions were lawful.
Id. at 617 (emphases added). Wilson rejected reliance on one case
as sufficient. Id. at 616-17. The case there, parenthetically,
was a summary judgment case, id. at 608, like Smith v. Mattox, 127
F.3d 1416 (11th Cir. 1997), on which the majority relies.
-55-
In Brady v. Dill, 187 F.3d 104 (1st Cir. 1999), we
expressly adopted Wilson's holding in concluding that the law was
not clearly established at the time of the defendants' conduct.
Id. at 116. We also applied the Wilson rule without dispute in
Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003) (equally
divided en banc court). The majority thus cannot rely on the
single decision of Smith v. Mattox to give fair notice.
Further, Smith does not provide such fair notice to the
officer, but supports the view that immunity was correctly granted.
Smith merely affirmed the district court's denial of summary
judgment on qualified immunity grounds because inferences, just
barely, could be drawn that the force used was obviously and
patently excessive. Id. at 1419. In Smith, the plaintiff had
earlier threatened the officer with a baseball bat, but had then
dropped the bat, run through a backyard, down a driveway, and into
another street, and then returned to the driveway of his mother's
house, where the officer found him. Smith said he then docilely
submitted to arrest, got down on the ground as requested, and
offered no resistance. Nonetheless, the officer struck him a blow
which broke his arm in multiple places. Id. at 1418. Notably,
Smith held that other inferences would permit a finder of fact to
conclude that the officer had behaved reasonably. That was because
even if Smith was not actively resisting
arrest at the very moment the force was
applied, he was before that moment; [the
officer] could reasonably have believed that
-56-
without some force restraining Smith, he would
have resumed either his attacks or his flight.
Thus, it was not unreasonable for [the
officer] to think that he was entitled to use
some force to put Smith into cuffing posture.
Id. Smith does not help Jennings; it helps Jones. The majority
also argues that Jones offered no contrary precedent to Smith.
That is not true, and the majority confuses who has the burden to
show clear notice.
Other court of appeals cases, in addition to Smith, tend
to support the constitutionality of Jones' actions and so undercut
plaintiff's claims that Jones was on clear notice from prior case
law that his particular application of force was unreasonable.
Many of these cases involve situations, as here, where officers
were attempting to handcuff an individual who had been resistant.
See Rodriguez v. Farrell, 294 F.3d 1276, 1278-79 (11th Cir. 2002)
(finding no excessive force, and noting that an officer need not
credit an arrestee's claims of pain, especially when the arrestee
is in the process of being handcuffed); Jackson v. City of
Bremerton, 268 F.3d 646, 650-53 (9th Cir. 2001) (finding no
excessive force where plaintiff suffered a fractured finger after
officer pushed plaintiff to the ground for purpose of handcuffing
her despite being told of preexisting back and shoulder injuries,
and where plaintiff had earlier posed a threat to officers' safety
and ability to control a crowd); Huang v. Harris County, No.
00-20806, 2001 WL 822534, at *10 (5th Cir. June 22, 2001) (holding
-57-
that force was reasonable where officer broke resisting arrestee's
thumb by twisting her wrist, in an effort to "prevent her from
kicking him . . . and place her in handcuffs"); Brownell v. Figel,
950 F.2d 1285, 1288, 1293 (7th Cir. 1991) (finding no
constitutional deprivation where officers employed two different
pain techniques, application of pressure on the plaintiff's
knuckles and on a nerve behind his jaw); Eberle v. City of Anaheim,
901 F.2d 814, 820 (9th Cir. 1990) (upholding the use of a "finger
control hold" to remove a belligerent spectator from a sports
arena). Under these cases, an officer in Jones' position could
reasonably have concluded that his conduct was not
unconstitutional.
2. Need for Particularity and Obviousness
For a variety of Fourth Amendment claims involving
reasonableness and judgment calls, this circuit has required that
plaintiff refer to particularized prior cases with similar facts.
E.g., Buchanan v. Maine, 469 F.3d 158, 168-69 (1st Cir. 2006);
Riverdale Mills, 392 F.3d at 65-66; Napier v. Town of Windham, 187
F.3d 177, 189 (1st Cir. 1999). That is because the Fourth
Amendment's touchstone of reasonableness generally requires careful
consideration of the totality of the circumstances. "[F]or the
most part per se rules are inappropriate in the Fourth Amendment
context," and consideration of the "totality of the circumstances"
is required. United States v. Drayton, 536 U.S. 194, 201, 207
-58-
(2002).30
In excessive force cases, our rule is that there is an
even greater emphasis on the requirement of particularity, where
officers act under pressure and must make very quick judgments.
See Wilson, 526 U.S. at 615 ("[T]he right allegedly violated must
be defined at the appropriate level of specificity before a court
can determine if it was clearly established."); Priester v. City of
Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (observing that
"generally no bright line exists for identifying when force is
excessive").31 The test for excessive force "does not always give
30
Other circuits have taken a similar approach to
particularity in the context of Fourth Amendment reasonableness
inquiries, especially in excessive force cases. See Walker v. City
of Orem, 451 F.3d 1139, 1151 (10th Cir. 2006) (noting in a Fourth
Amendment unreasonable detention case that "allegations of
constitutional violations that require courts to balance competing
interests may make it more difficult to find the law 'clearly
established' when assessing claims of qualified immunity" (quoting
Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.
1992)) (internal quotation marks omitted)); Williams v. Kaufman
County, 352 F.3d 994, 1012 (5th Cir. 2003) (holding that prolonged
detention was unlawful, but affirming qualified immunity because
applicable Supreme Court law, which "allow[ed] a seizure without
probable cause when the proper balance [was] struck between law
enforcement and personal security interests," failed to put officer
on notice); Priester v. City of Riviera Beach, 208 F.3d 919, 926
(11th Cir. 2000) ("In the context of . . . excessive force claims,
we have noted that generally no bright line exists . . .; we have
therefore concluded that unless a controlling and materially
similar case declares the official's conduct unconstitutional, a
defendant is usually entitled to qualified immunity.").
31
As one commentator has noted in light of the chaotic
circumstances surrounding most excessive force claims, while "there
may be cases . . . where the law was so clearly settled that the
finding of a constitutional violation would mean that the defendant
loses on qualified immunity as well[, such cases] will be
-59-
a clear answer as to whether a particular application of force will
be deemed excessive by the courts. This is the nature of a test
which must accommodate limitless factual circumstances." Saucier,
533 U.S. at 205. "[T]he Supreme Court has cautioned that in many
cases the generalized holdings of [Tennessee v. Garner, 471 U.S. 1
(1985),] and [Graham v. Connor, 490 U.S. 386 (1989),] will not
provide sufficient notice to police officers" as to what
constitutes excessive force. Whitfield v. Meléndez-Rivera, 431
F.3d 1, 8 (1st Cir. 2005). As reasoned above, Jennings has not
provided any such particularized prior case.
There is an exception to the need for particularized
prior law where the police conduct is so excessive and lies so
obviously at the core of what the Fourth Amendment prohibits that
the unlawfulness of the conduct would have been readily apparent to
an officer. See United States v. Lanier, 520 U.S. 259, 270-71
(1997); Brady, 187 F.3d at 116. The majority tries to fit within
this exception. It reasons that it was so obvious that the use of
force was excessive that Jones was clearly on notice for purposes
of the second prong. The majority attempts to justify its
obviousness conclusion by saying there is a clear and obvious
dividing line between use of force and increased use of force. It
relatively rare in the Fourth Amendment . . . excessive force
setting because of the very fact-specific nature of these issues."
2 S. Nahmod, Civil Rights and Civil Liberties Litigation: The Law
of Section 1983 § 8:19.50, at 103 (4th ed. 2006).
-60-
cites no cases for that point, and the case law, described earlier,
goes the other way. The majority's conclusion is not supported by
the facts or by the case law.
As the district court pointed out, there are no cases
holding that the use of the ankle turn control technique, which
itself involves the use of varying degrees of force, is
unconstitutional. Jennings, 2005 WL 2043945, at *9. Indeed, the
use of pain, even when an individual complains of pain, is an
established technique to bring an arrestee under control and to
prevent possible injury to an officer. Case law has clearly
established that the use of similar application-of-pressure
techniques, even those involving increasing amounts of pain, does
not amount to excessive force. There certainly are cases in which
an officer's use of force is so obviously excessive that the
officer is on clear notice; this is not one of them.
C. Third Prong: Whether an Objectively Reasonable Officer
Could Have Concluded that Jones' Actions Were Lawful
The third prong of our qualified immunity test asks
"whether a reasonable officer could have concluded that his actions
did not violate [the] plaintiff['s] constitutional rights."
Tremblay v. McClellan, 350 F.3d 195, 199 (1st Cir. 2003). This
inquiry acknowledges that "law enforcement officials will in some
cases reasonably but mistakenly conclude that [their conduct] is
. . . lawful." Anderson v. Creighton, 483 U.S. 635, 641 (1987).
In Saucier, the Supreme Court explained how the third prong applies
-61-
in excessive force cases:
It is sometimes difficult for an officer to
determine how the relevant legal doctrine,
here excessive force, will apply to the
factual situation the officer confronts. An
officer might correctly perceive all of the
relevant facts but have a mistaken
understanding as to whether a particular
amount of force is legal in those
circumstances. If the officer's mistake as to
what the law requires is reasonable, however,
the officer is entitled to the immunity
defense.
533 U.S. at 205.
Under the third prong, an officer who makes "a reasonable
judgment call" is entitled to qualified immunity. Buchanan, 469
F.3d at 170. "The calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make
split-second judgments -- in circumstances that are tense,
uncertain, and rapidly evolving -- about the amount of force that
is necessary in a particular situation." Graham, 490 U.S. at 396-
97. On these facts, an objectively reasonable officer could have
believed that Jones' use of force -- and its degree -- was lawful.32
32
The district court reached its conclusion based on the
following factual findings, which have ample support in the record.
Jones did not know why Jennings was being
arrested or whether he was armed. Nor could
Jones have known, with any certainty, why
Jennings failed to heed orders to show his
hands. Moreover, even if Jennings had stopped
actively resisting, Jones had no way of
knowing whether Jennings would resume kicking
or resisting if Jones released his ankle hold.
-62-
There are a number of reasons for this. First, this was
an instance of quick judgment by an officer in a chaotic situation.
The district court stated that the entire series of these events
took place in a chaotic scene over the course of about one minute.
The key events, from when Officer Hill got up from the floor to
when Jennings shouted in pain, took place within "several seconds."
Jennings has represented the time in question to last anywhere from
twelve to eighteen seconds. In this short time frame, a reasonable
officer easily could have made mistakes as to Jennings' degree of
resistance, the degree of risk Jennings posed to the officers, and
the appropriate level of force to employ.
Concern over the safety of the officers and others was
entirely reasonable. Jones testified he tried to secure Jennings'
ankle both for his own safety, to prevent Jennings from kicking him
while he was kneeling next to Jennings, and to lessen Jennings'
In addition, . . . Jones and other troopers at
the Academy were taught that the ankle control
technique is appropriate to subdue an arrestee
who is actively resisting; to protect against
the possibility that an arrestee who
previously engaged in assaultive behavior
might resume that behavior and/or to induce
compliance by an arrestee who is passively
resisting. Furthermore, Delaney, the only
expert witness who testified, indicated that
Jones acted properly and in accordance with
departmental policy regarding use of the ankle
turn control technique.
Jennings, 2005 WL 2043945, at *11. The district court's conclusion
rests on subsidiary factual findings, which are not clearly
erroneous.
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resistance to arrest. He was also concerned that Jennings might
have a weapon because he could not see Jennings' hands. Jennings
himself acknowledged that at least one of his hands was not visible
for a time. There is no doubt Jennings was resisting the officers
earlier in the encounter. That was shown in the videotape.
Even if Jennings had just stopped kicking and flailing,
the undisputed evidence demonstrates that (1) Jennings was not
totally secured at the time his ankle was broken, (2) Jennings had
posed a threat to the safety of the officers and others just
seconds before, (3) the officers were having a difficult time
getting the flex cuffs on Jennings, and (4) Jones' overall use of
force was, in the opinion of the expert, reasonable under the
circumstances.33 Lt. Delaney, the only expert witness on use of
33
The majority argues that Lt. Delaney's assessment of the
reasonableness of Jones' actions did not keep "the relevant factual
circumstances in mind" because the factors listed by Delaney to
support his view "all occurred prior to the time that Jennings
ceased to resist." The majority's argument is misguided. Delaney
listed a number of factors he considered relevant to his opinion,
including Jennings' noncompliance and assaultive behavior, but
these were not the only circumstances he had in mind. The trial
transcript makes clear that Delaney's opinion was based on the same
videotape the majority says demonstrates that Officer Hill walked
away after pulling Jennings' left arm out from under his body.
Further, the majority fails in its attempt to distinguish
"use of force" from "increase in force" as a matter of evidence.
The transcript is clear that the expert was asked about the
reasonableness of Jones' use of force overall, not about the
reasonableness of the use of the ankle turn control technique
without an increase in force. Even if the central issue in the
case is the increase in force on Jennings' ankle, Delaney's
testimony directly addresses the reasonableness of Jones' overall
conduct.
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force, testified that until Jennings was "totally cuffed up and
secured,"34 it was appropriate for Jones to continue using the same
compliance technique as he had, and alternative compliance
techniques were not acceptable. Not even Jennings asserts that he
was secured in handcuffs at the time his ankle was broken. Nor did
any of his witnesses. Jennings asserted only that he had stopped
moving and was not resisting arrest. And Officer Hill was clear
that Jennings was not in cuffs when Hill stood up. Indeed, Hill
got out of the way because other officers were having trouble
cuffing Jennings.
The majority says it is irrelevant that Jennings was not
handcuffed; the only important consideration is that Jennings had
stopped struggling. Not so. Jennings had just been subdued by
Hill; Hill then got up and Jennings could, until he was cuffed,
have started up again at any time. An officer could reasonably
view this as a time of great risk, and even greater risk than when
Hill had subdued Jennings. The majority claims that expert
testimony supports its view that any increase in force once Jones
stopped struggling was unreasonable. The expert said just the
opposite. Delaney testified that the degree of force was a
34
Delaney testified specifically about the period when
officers were trying to get Jennings "cuffed up and secured." He
explained that flex cuffs, which are made of plastic, are more
difficult to apply than metal cuffs, and that it is very hard to
get them on someone who does not want to be handcuffed.
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judgment call, and that resistance was one factor and risk was
another. Even if Jones were wrong about the degree of risk, his
judgment was not unreasonable.
Jennings' argument is that regardless of whether he was
cuffed, and even if the ankle turn control technique is acceptable,
Jones applied the technique with too much force. But that is
precisely in the area of judgment calls which are protected by
qualified immunity. The district court directly addressed the
degree of force or tension which Jones applied to the ankle,
concluding that
[t]he ambiguity of the factual situation
confronting Jones; the "split second" nature
of the decision that he was required to make;
the existence of established departmental
policy permitting use of the ankle control
technique under such circumstances; and the
absence of any case law prohibiting its use,
virtually compel the conclusion that it was
objectively reasonable for Jones to believe
that he acted lawfully.
Jennings, 2005 WL 2043945, at *11.
Under our case law, the district court committed no error
in finding qualified immunity on the basis that this was a
protected judgment call. See Buchanan, 469 F.3d at 170; Cox v.
Hainey, 391 F.3d 25, 31-32 (1st Cir. 2004); Vargas-Badillo v.
Diaz-Torres, 114 F.3d 3, 7 (1st Cir. 1997).
Thus, the majority errs in assuming the jury necessarily
found two facts and in reinstating the jury verdict based on those
ungrounded assumptions. The majority has reinstated that jury
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verdict. While I disagree with that, the majority correctly
remands to the district court to rule, ab initio, on the motions
for new trial and for remittitur.
For the reasons stated above, I respectfully dissent as
to the majority's holdings.
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