Ciolino v. Gikas

United States Court of Appeals
For the First Circuit

No. 16-2107

ALFONSO CIOLINO,

Plaintiff, Appellee,

CINSIA CIOLINO,

Plaintiff,

v.

GEORGE GIKAS,

Defendant, Appellant,

DAVID EARLE; AARON EASTMAN; BRIAN CROWLEY; FRANK G.
COUSINS, JR., Sheriff, Essex County; CITY OF GLOUCESTER,
Commonwealth of Massachusetts; JOHN DOE,

Defendants.

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

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Lynch, Kayatta, and Barron,
Circuit Judges.

Stephen C. Pfaff, with whom Louison, Costello, Condon & Pfaff
LLP was on brief, for appellant.
Robert S. Sinsheimer, with whom Wesley B. Stoker and
Sinsheimer & Associates were on brief, for appellee.
June 28, 2017
 LYNCH, Circuit Judge. This excessive force case,

brought under 42 U.S.C. § 1983, stems from an arrest on June 30,

2013. Defendant George Gikas, a police officer on crowd-control

duty, grabbed plaintiff Alfonso Ciolino from behind by the collar

and dragged him backward and downward to the pavement, after seeing

Ciolino taunting K-9 dogs. The forceful takedown caused Ciolino

to sustain a torn rotator cuff. The incident was captured on a

24-second video, admitted into evidence at trial. We are faced

with the question of whether to sustain the district court's post-

verdict denial of qualified immunity to Sergeant Gikas. See

Ciolino v. Eastman, No. 13-cv-13300-ADB, 2016 WL 4148197 (D. Mass.

Aug. 4, 2016). We affirm.

The jury found that Gikas violated Ciolino's Fourth

Amendment right to be free from excessive force. Responding to

special questions on the verdict form, the jury also found that

Ciolino failed to comply with police orders and taunted K-9 dogs

immediately prior to his arrest and that Gikas had probable cause

to arrest Ciolino on the night in question. The jury did not

answer one of the special questions, which asked whether Ciolino

was "inciting the surrounding crowd immediately prior to his

arrest."

The district court then denied Gikas's post-verdict

motion for judgment as a matter of law, rejecting Gikas's argument

that he was entitled to qualified immunity. We agree with the

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district court that a reasonable officer in Gikas's position would

have understood that Gikas's actions violated Ciolino's Fourth

Amendment right to be free from excessive force.

We also find no abuse of discretion in the district

court's decisions not to define the word "incited" for the jury,

in the context of the special question on the verdict form, and to

allow the jury to leave that question unanswered.

I. Background

A. Facts

We adopt the district court's recitation of the facts

but provide the following summary. Like the district court, we

view the facts in the light most favorable to the verdict,

deferring "to the jury's discernible resolution of disputed

factual issues." Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir.

2010) (quoting Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir.

1999)).

On Saturday, June 29, 2013, Alfonso Ciolino, his wife

Cinsia, and two other couples attended together the annual St.

Peter's street festival in downtown Gloucester, Massachusetts.

The group eventually arrived at the St. Peter's Club on Main Street

("the Club"), and Ciolino briefly went inside with one companion

to use the men's bathroom while the rest of the group waited

outside. Ciolino testified that he had "maybe a beer and a half,

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maybe two" over the course of the evening and that he was not drunk

when he left the Club around midnight.

A crowd had gathered outside the Club shortly after

midnight, which was approximately when Ciolino left the Club. Law

enforcement officers from different departments and K-9 dogs were

present for crowd-control purposes. Gikas, a Sergeant from the

Essex County Sheriff's Department, and his colleague, Sergeant

John Pickles, were present on K-9 duty. Two other officers from

the same department, Aaron Eastman and David Earle, were also

present on plainclothes duty. Around the time Ciolino was leaving

the Club, officers ordered the crowd to disperse. Some members of

the crowd began moving along the sidewalk; others moved slowly or

not at all. Sergeant Gikas and Sergeant Pickles were standing in

the street, facing the crowd, which was gathered on the sidewalk.

Gikas and his dog were about six feet away from the sidewalk;

Pickles and his dog were in front of Gikas, closer to Ciolino and

the sidewalk. Ciolino walked away from the Club's exit, in the

direction of Sergeant Gikas and Sergeant Pickles.

On the video, Ciolino is seen walking along the sidewalk,

pausing in front of Pickles's dog in the street, and gesturing

toward the dog, without ever touching the dog or leaving the

sidewalk. Ciolino admits that he also said something along the

lines of "Look, the dogs got . . . muzzle[s] in their mouths. They

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can't do anything." It is clear on the video, and is undisputed,1

that Ciolino then turns his back to the street, away from Gikas,

Pickles, and the dogs. The video shows Gikas's and Pickles's dogs

barking continuously toward the crowd both before and after

Ciolino's gesture.

The video shows no visible reaction by Pickles after

Ciolino's gesture toward Pickles's dog. Nor does anyone in the

crowd appear to react, although the video captures only a portion

of the crowd. The district court stated, and the video confirms,

that Ciolino "did not use or threaten violence, nor was he inciting

the crowd to act violently" in a manner that warranted a sudden

and forceful arrest. Ciolino, 2016 WL 4148197, at *5.

The video shows Gikas then walking up to Ciolino,

grabbing Ciolino from behind by at least his shirt collar, and

yanking Ciolino forcibly backward and downward, off the sidewalk

and onto the pavement in the street.2 Ciolino is seen falling

1 Witnesses at trial, including Gikas, confirmed that
Ciolino had turned away from the dogs and the officers in the
street, and was facing the crowd on the sidewalk, before Gikas
approached him and seized him.

2 At oral argument, Gikas's counsel disputed the notion
that Gikas "threw" Ciolino to the ground. That word was used at
trial both by Ciolino and by two witnesses to Ciolino's arrest.
The video makes it clear that Gikas seized Ciolino and used force
in bringing him to the ground. The jury's verdict establishes
that the force, however characterized, was excessive. Gikas does
not challenge the sufficiency of the evidence supporting the
verdict.

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awkwardly to the ground, landing hard on his right side. The video

ends with Eastman and Earle, the plainclothes officers, converging

on the prone Ciolino and handcuffing him. Ciolino was later

diagnosed with a torn rotator cuff as a result of the incident.

Ciolino was taken to the police station after his arrest

and charged with a Gloucester ordinance violation and disorderly

conduct. The Gloucester District Court later dismissed the

charges.

B. District Court Proceedings

Ciolino and his wife brought suit in federal court on

December 31, 2013, pleading § 1983 and state law claims against

Gikas, several other officials, and the City of Gloucester.3 On

September 3, 2015, the district court granted in part the

defendants' motion for summary judgment but allowed the § 1983

excessive force claim and a state law malicious prosecution claim

to proceed to trial against Gikas, Eastman, and Earle.

The trial began on January 19, 2016. The verdict form

included four questions framed and posed by the district court,

over Ciolino's objection. The jury answered "yes" to Questions

3(a), 3(b), and 3(c):

3 Officers Eastman, Earle, and Brian Crowley were also
named as defendants, as was Frank Cousins, Jr., the Sheriff of
Essex County. All claims against Crowley, Cousins, and the City
of Gloucester dropped out of the case before trial. The jury found
Eastman and Earle not liable.

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 a) Did Mr. Ciolino fail to comply with any orders from law
enforcement officers immediately prior to his arrest?
b) Did the Defendants have probable cause to arrest Mr.
Ciolino on the night in question?
c) Was Mr. Ciolino taunting or inciting any of the [K-9]
dogs immediately prior to his arrest?

The jury chose not to answer Question 3(d):

d) Was Mr. Ciolino inciting the surrounding crowd
immediately prior to his arrest?

The district court had instructed the jury to "leave [Question

3(d)] blank" if they could not agree on a yes or no answer.

On January 25, 2016, the jury found Eastman and Earle

not liable and found Gikas liable as to the § 1983 excessive force

claim. The jury awarded Ciolino $140,000 in damages.

On August 4, 2016, in a written order, the district court

denied Gikas's post-verdict motion for qualified immunity.4

Viewing the record in the light most favorable to the verdict, the

district court held that Ciolino had "posed no immediate threat to

the safety of the crowd, the officers, or the [K-9] dogs," Ciolino,

2016 WL 4148197, at *4; that Ciolino's criminal offense (if any)

had been minor and had involved neither violence nor resistance to

arrest, id. at *5; and that the situation outside the Club had not

been so "volatile" or so "rapidly escalating" as to justify a

sudden and aggressive police response, id. The court concluded

4 At the close of the plaintiff's case, the district court
had reserved a ruling on the defendants' motion until after the
jury's verdict. See Fed. R. Civ. P. 50.

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"that, at the time of the incident on June 30, 2013, it was clearly

established that forcibly throwing a suspect to the ground for

purposes of making an arrest would constitute excessive force" in

such circumstances. Id. The court cited three First Circuit

cases, decided before the incident, to support that holding. See

Raiche, 623 F.3d at 39; Morelli v. Webster, 552 F.3d 12, 24 (1st

Cir. 2009); Alexis v. McDonald's Rests. of Mass., Inc., 67 F.3d

341, 346, 353 (1st Cir. 1995).

II. Special Jury Question 3(d)

Question 3(d) on the verdict form asked the jury whether

Ciolino was "inciting the surrounding crowd immediately prior to

his arrest." During its deliberations, the jury sent the district

court a question concerning Question 3(d): "Please define

'incited.' Are we being asked if Mr. Ciolino was attempting to

incite the crowd or if he was successful in inciting the crowd?"

Gikas's counsel argued that the word should be defined

for the jury as including "attempt[ing] to incite," and that,

regardless, the jury should be required to answer the question.

The district court chose not to offer a definition to the jury,

reasoning that no definition had been offered during jury

instructions and that, in any event, the question was merely

advisory. The court responded to the jury's question as follows:

Question 3(d) asks you to make certain factual
findings as the finders of fact. And if you
can make that factual finding consistent with

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 the rest of my instructions, you should make
it.

If you are unable to come to an agreement on
that one question, please leave it blank.

Gikas argues on appeal that the district court erred by

declining to clarify the definition of "incited" and by allowing

the jury not to answer Question 3(d). We review each of those two

decisions for abuse of discretion. See Uphoff Figueroa v.

Alejandro, 597 F.3d 423, 434 (1st Cir. 2010) (applying abuse of

discretion review to "claimed errors in instructions' form or

wording" and to "preserved objections to special verdict forms");

Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 134 (1st Cir. 2004)

("To determine whether the issues were fairly presented to the

jury, we examine the court's instructions and the wording of the

verdict form as a whole.").

The district court permissibly exercised its discretion

by declining to provide a definition of "incited," which is not a

word "outside of [an ordinary] juror's understanding." United

States v. Fulmer, 108 F.3d 1486, 1495 (1st Cir. 1997); see also

United States v. Stefanik, 674 F.3d 71, 74 (1st Cir. 2012) (stating

that the district court "was not compelled to give a definition

[of the word 'intimidate'] even when the jury requested one").

The district court also acted within its discretion when

it allowed the jury not to answer the advisory Question 3(d).

District courts may submit "special interrogatories to the jury"

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in order to elicit factfinding that is relevant to the court's

legal conclusion on qualified immunity. Singh v. Blue Cross/Blue

Shield of Mass., Inc., 308 F.3d 25, 34 n.9 (1st Cir. 2002) (quoting

St. Hilaire v. City of Laconia, 71 F.3d 20, 24 n.1 (1st Cir.

1995)). District courts are not required to pose any such

questions.

In our view -- and in the district court's view -- an

answer to Question 3(d) was not necessary to the jury's liability

findings. Nor was an answer necessary to the district court's

qualified immunity ruling. Indeed, the district court confirmed

that its immunity holding "would have been the same if the special

questions had not been posed." Ciolino, 2016 WL 4148197, at *6

n.3.

III. Qualified Immunity

We review de novo "the district court's denial of a post-

verdict motion for judgment as a matter of law under Rule 50," and

we "view[] the evidence in the light most favorable to the

verdict." Kennedy v. Town of Billerica, 617 F.3d 520, 527 (1st

Cir. 2010). In qualified immunity analysis, both elements

(described below) of the question of whether the law was clearly

established are legal determinations, entitled to de novo review.

See Stamps v. Town of Framingham, 813 F.3d 27, 33, 39 (1st Cir.

2016) (citing Elder v. Holloway, 510 U.S. 510, 516 (1994));

Decotiis v. Whittemore, 635 F.3d 22, 36–37 (1st Cir. 2011).

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A. Qualified Immunity Framework

Qualified immunity protects public officials from § 1983

suits for damages if their actions "d[id] not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." White v. Pauly, 137 S. Ct.

548, 551 (2017) (per curiam) (quoting Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (per curiam)).

The Supreme Court has repeatedly emphasized qualified

immunity's importance -- particularly "the longstanding principle

that 'clearly established law' should not be defined 'at a high

level of generality.'" Id. at 552 (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 742 (2011)); see also, e.g., City & County of San

Francisco v. Sheehan, 135 S. Ct. 1765, 1776 (2015) ("Qualified

immunity is no immunity at all if 'clearly established' law can

simply be defined as the right to be free from unreasonable

searches and seizures."). We must analyze whether the law is

clearly established "in light of the specific context of the case,

not as a broad general proposition." Hunt v. Massi, 773 F.3d 361,

367 (1st Cir. 2014) (quoting Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (per curiam)).

Graham v. Connor, 490 U.S. 386 (1989), and Tennessee v.

Garner, 471 U.S. 1 (1985), provide the "general tests" for Fourth

Amendment excessive force claims. Brosseau, 543 U.S. at 199. They

set forth three criteria for evaluating the reasonableness of force

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used: (1) "the severity of the crime at issue"; (2) "whether the

suspect poses an immediate threat to the safety of the officers or

others"; and (3) "whether [the suspect] is actively resisting

arrest or attempting to evade arrest by flight." Graham, 490 U.S.

at 396 (citing Garner, 471 U.S. at 8–9). Although Graham and

Garner "guide us in determining the law in many different kinds of

circumstances," those precedents are "cast at a high level of

generality" and do not necessarily establish the "clear law . . .

that would apply" to any given set of circumstances, outside of

the most "obvious case[s]." Brosseau, 543 U.S. at 199 (citation

omitted). As we apply the Graham factors, we must look also to

"clearly established law" that is "'particularized' to the facts

of the case." White, 137 S. Ct. at 552 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)); accord Plumhoff v. Rickard,

134 S. Ct. 2012, 2023 (2014).

We undertake a two-step inquiry in qualified immunity

cases, asking "(1) whether the facts alleged or shown by the

plaintiff make out a violation of a constitutional right; and

(2) if so, whether the right was 'clearly established' at the time

of the defendant's alleged violation." Stamps, 813 F.3d at 34

(quoting Mlodzinski v. Lewis, 648 F.3d 24, 32 (1st Cir. 2011)).

In this case, the jury has already found that Gikas violated

Ciolino's Fourth Amendment right to be free from excessive force.

Gikas has not challenged the sufficiency of the evidence supporting

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that verdict, either in his post-verdict motion in the district

court or before us.

As a result, we address the second prong: whether the

right that Gikas violated was "clearly established" at the time

Gikas acted. Id. (quoting Mlodzinski, 648 F.3d at 32). "The

second prong, in turn, has two elements: 'We ask (a) whether the

legal contours of the right in question were sufficiently clear

that a reasonable officer would have understood that what he was

doing violated the right, and (b) whether in the particular factual

context of the case, a reasonable officer would have understood

that his conduct violated the right.'" Id. (quoting Mlodzinski,

648 F.3d at 32–33).

The first element of prong two is easily satisfied. The

legal contours of Ciolino's right were clear and a reasonable

officer would have had "clear notice" of it. Mlodzinski, 648 F.3d

at 33 (quoting Decotiis, 635 F.3d at 37); see also, e.g., Morelli,

552 F.3d at 23–24 ("Our case law supplies a crystal clear

articulation of the right . . . to be free from the use of excessive

force by an arresting officer."). Gikas focuses his argument on

the second element of prong two: whether a reasonable officer would

have understood that Gikas's actions were unconstitutional under

the particular circumstances he confronted. See Mlodzinski, 648

F.3d at 33; see also Decotiis, 635 F.3d at 36–37 (explaining that

the second element of prong two "requir[es] a legal determination"

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but "is highly fact specific" (quoting Estrada v. Rhode Island,

594 F.3d 56, 63 (1st Cir. 2010))).

B. Analysis of Second Element of Second Qualified Immunity Prong

We agree with the district court that a reasonable

officer in Gikas's position "would have understood that what he

[wa]s doing violate[d]" Ciolino's Fourth Amendment right. al-

Kidd, 563 U.S. at 741 (quoting Anderson, 483 U.S. at 640).

We review briefly three cases, each of which predates

Gikas's actions in June 2013. In our view, these precedents embody

"a robust 'consensus of cases of persuasive authority,'" id. at

742 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)), such that

a reasonable officer would have recognized "the violative nature

of [Gikas's] particular conduct," id.

Raiche v. Pietroski is most closely on point. Two police

officers, including defendant Pietroski, signaled plaintiff Raiche

to stop by using their cruiser's overhead lights when they saw him

driving a motorcycle without a helmet. 623 F.3d at 33–34. Raiche

did not immediately stop. Id. When Raiche did pull over,

Pietroski ran immediately from his cruiser toward Raiche and

tackled him, taking him off the motorcycle. Id. at 34. A jury

later found that Pietroski had used excessive force. Id. at 35.

"[G]iven the jury's resolution of the facts," id. at 36, we

affirmed the district court's post-verdict denial of qualified

immunity. Id. at 35–36.

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 Raiche, like Ciolino, disobeyed a police order but

showed no inclination to resist arrest or to attempt to flee from

arrest. See id. at 37. Like Ciolino, he "present[ed] no

indications of dangerousness." Id. at 39. Like Ciolino, he was

not given a chance to submit peacefully to arrest before

significant force was used to subdue him. See id. at 39 & n.3.

And in Raiche, as here, the defendant officer had no need to make

"split-second judgments" in response to "tense, uncertain, and

rapidly evolving" circumstances. Id. at 39 (quoting Graham, 490

U.S. at 396). Rather, an "objectively reasonable police officer"

would have taken a more measured approach. Id.

Morelli v. Webster and Alexis v. McDonald's Restaurants

of Massachusetts, Inc. further illustrate the application of

Graham's general excessive force principles in a situation

analogous to the one before us. In Morelli, the plaintiff was

detained in a hotel corridor with force sufficient to tear her

rotator cuff, despite the fact that she had committed a minor

crime, at most, and showed no "evidence of either dangerousness or

attempted flight." 552 F.3d at 24. In Alexis, after the plaintiff

refused an officer's orders to leave a restaurant, see 67 F.3d at

345–46, the officer "suddenly and violently grabbed and pulled

[the plaintiff] bodily from the booth and across the table," id.

at 346. In each case, viewing the record in the plaintiff's favor

at the summary judgment stage, we reversed the district court's

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grant of qualified immunity, finding the defendant officer's

actions not only unconstitutional but also "outside the universe

of protected mistakes," Morelli, 552 F.3d at 24, that a reasonable

officer might have made under the circumstances. See id. at 25;

Alexis, 67 F.3d at 353.

Seeking to persuade us that his judgment calls, even if

mistaken, were those of a reasonable officer, Gikas argues that

the scene outside the Club was so volatile that he was "forced to

make [a] split-second judgment[]," Graham, 490 U.S. at 397, about

how much force was warranted. Gikas testified that he arrested

Ciolino in the way he did because Ciolino "was inciting the crowd,"

and so Gikas "needed to get [Ciolino] away from the crowd in order

to gain control over it."

The record before us does not support Gikas's argument

that he had to make a split-second judgment and that the atmosphere

outside the Club was so highly combustible that he had to arrest

Ciolino as he did. The video, although it captures only 24

seconds, refutes Gikas's argument. Notably, the video shows that

Sergeant Pickles, the officer whose dog Ciolino taunts just before

the arrest, barely reacts to Ciolino's behavior and certainly does

not treat Ciolino as a threat. Nor do the other officers on the

scene. And no officer on the scene testified that Ciolino was

posing an immediate threat of violence and had to be removed. Even

Gikas himself testified that he did not perceive Ciolino as an

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active threat; rather, his goal in removing Ciolino forcibly from

the sidewalk was to prevent Ciolino from having an "opportunity to

[incite] the crowd," which "could instigate a larger problem."

The cases cited by Gikas involve plainly distinguishable

circumstances. In one set of cases, the officers claiming immunity

faced much more volatile and dangerous scenes than the one Gikas

confronted, and the persons against whom force was used posed a

greater threat to the safety of the officers and others than

Ciolino did. See, e.g., Asociación de Periodistas de P.R. v.

Mueller, 680 F.3d 70, 74–75 (1st Cir. 2012) (granting immunity

where video of incident showed a "rapid deterioration of the

situation" and "physical confrontation[s]" as officers were

attempting to disperse crowd); Fils v. City of Aventura, 647 F.3d

1272, 1290–91 (11th Cir. 2011) (granting immunity to officer for

slamming plaintiff to ground, where plaintiff's own testimony

indicated that "the crowd outside the club became significantly

more hostile to the police after [a co-plaintiff] was tased," and

plaintiff had taken a step toward officer, whose back was turned,

while screaming at him); Salazar v. City of New York, No. 15-cv-

1989 (KBF), 2016 WL 3748499, at *1 (S.D.N.Y. July 11, 2016)

(granting immunity to officers who had acted in response to a "loud

and physical . . . brawl" involving the plaintiff, adjacent to a

crowd outside a bar in midtown Manhattan); Estate of Devine v.

Fusaro, No. 3:14-cv-01019 (JAM), 2016 WL 183472, at *1-3 (D. Conn.

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Jan. 14, 2016) (granting immunity to officers for actions aimed at

ending unpredictable and dangerous standoff with armed and

suicidal man), aff'd, No. 16-414-cv, 2017 WL 362685 (2d Cir. Jan.

23, 2017) (unpublished summary order).

A second set of Gikas's cases, which overlaps in part

with the first set, is distinguishable for another reason: they

involved arrestees who had physically resisted, or were actively

resisting, arrest. See, e.g., Salazar, 2016 WL 3748499, at *2, *6

(granting immunity for pepper-spraying plaintiff who had been

"kicking and screaming" during her arrest); Brown v. City of New

York, No. 13-cv-1018 (KBF), 2016 WL 1611502, at *1–2 (S.D.N.Y.

Apr. 20, 2016) (granting immunity for pepper-spraying plaintiff

who had refused to offer her hands for handcuffing);5 Therrien v.

Town of Jay, 483 F. Supp. 2d 19, 26–27 (D. Me. 2007) (granting

immunity for forceful takedown after a lengthy car chase, in which

5 Gikas also argues that Brown stands for the principle
that "even when a jury or judge finds force excessive, where the
issue of qualified immunity is a close call, it should fall in
favor of the police officers." There is no such rule in the Second
Circuit, and certainly not in the First Circuit. Brown merely
reiterates that if reasonable minds could disagree as to the first
prong of qualified immunity -- that is, whether there was a
constitutional violation at all -- a defendant will ordinarily be
entitled to immunity on the second prong. That language restates
the familiar principle that qualified immunity gives "a reasonable
officer . . . the benefit of a margin of error." Mlodzinski, 648
F.3d at 33 (quoting Morelli, 552 F.3d at 24).

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arrestee ignored numerous orders to stop, was clearly intoxicated,

and generally acted in an "irrational and unpredictable fashion").6

Finally, we reject Gikas's argument that he acted in a

manner consistent with his training and police protocol when he

took Ciolino to the ground with force. Cf. Stamps, 813 F.3d at 32

n.4 (discussing the relevance of "police training and procedures"

to a qualified immunity inquiry in an excessive force case). Gikas

testified at trial that he had been taught to employ "open-hand"

techniques to subdue arrestees who have refused to obey verbal

commands and that he used such a technique on Ciolino, rather than

a more extreme use of force, after perceiving that Ciolino had

refused police instructions to "move along" and to leave the K-9

dogs alone.

If anything, Gikas's actions appear to be contrary to

the training he says he received on the spectrum of police

responses. A reasonable officer might well have laid hands on

Ciolino, either to arrest him or to remove him, but would have

used a less aggressive technique, such as seizing and securing

6 Murphy v. Palmer, brought to our attention at oral
argument, could be placed into both sets of cases. No. 14-cv-6896
(FLW) (DEA), 2017 WL 2364195 (D.N.J. May 31, 2017) (unpublished
opinion). In Murphy, a forceful arrest was held to be reasonable
because the "belligerent and noncompliant" plaintiff attempted to
retreat when told he was under arrest, "it was unclear whether
[he] posed an imminent threat to the safety of the [o]fficers,"
and "[t]he circumstances were tense and rapidly escalating." Id.
at *13.

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Ciolino's hands, rather than taking the actions Gikas did. The

record contains no evidence that Gikas was trained to "jump[]

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

Raiche, 623 F.3d at 39, rather than to control Ciolino with a less

forceful technique. Nor is there any evidence that Gikas was

trained to regard a disobeyed order to "move along" as equivalent

to a disobeyed order to submit to arrest. See id. at 37–38;

Alexis, 67 F.3d at 345-46, 353. Gikas gave Ciolino no warning at

all that he was under arrest before Gikas decided to use force.

We conclude, as did the district court, that Gikas's

actions not only violated Ciolino's Fourth Amendment right but

also fell outside the "margin of error," Morelli, 552 F.3d at 24,

that qualified immunity provides.

IV. Conclusion

The denial of qualified immunity and the judgment are

affirmed.

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