Ciolino v. Gikas
2017 U.S. App. LEXIS 11599
| 1st Cir. | 2017Background
- At a crowded street festival in Gloucester, MA, police with K-9s ordered the crowd to disperse; Alfonso Ciolino gestured/taunted a K-9 from the sidewalk, turned away, and did not physically touch the dog.
- Sergeant George Gikas approached Ciolino from behind, grabbed him by the collar, and forcefully pulled him backward/down off the sidewalk onto the pavement; a 24‑second video captured the takedown.
- Ciolino suffered a torn rotator cuff; criminal charges were later dismissed. Ciolino sued under 42 U.S.C. § 1983 for excessive force; jury found Gikas liable and awarded $140,000.
- The jury also found Ciolino failed to comply with orders, taunted the K-9s, and that officers had probable cause to arrest; the jury left an advisory question about whether Ciolino "incited the crowd" unanswered.
- The district court denied Gikas’s post‑verdict motion for judgment as a matter of law and rejected qualified immunity; the First Circuit affirmed, concluding a reasonable officer would have known the force used was unconstitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gikas used excessive force in violation of the Fourth Amendment | Ciolino: seizing and throwing him to the ground was unreasonable because he posed no immediate threat, had committed no violent offense, and was not resisting | Gikas: force was reasonable to prevent Ciolino from inciting the crowd; split‑second judgment in a volatile crowd justified the takedown | Jury found excessive force; court affirmed that force was unreasonable |
| Whether qualified immunity shields Gikas from damages | Ciolino: clearly established law forbids such force in these circumstances; prior First Circuit cases put officer on notice | Gikas: factual context was volatile; reasonable officers could disagree; his actions were reasonable under the circumstances and training | Denied: the right was clearly established and a reasonable officer would have known the takedown was unlawful |
| Whether the district court erred by not defining "incited" for the jury | Ciolino: (objected at trial to special questions wording) — but no specific argument on this appeal | Gikas: requested definition to include attempted incitement and argued jury should answer the question | No abuse of discretion: "incited" is within juror understanding and the advisory question could be left blank |
| Whether leaving special question 3(d) unanswered required remedial action | Ciolino: N/A (court invited advisory questions) | Gikas: argued jury must answer the question | No abuse of discretion: the question was advisory and unnecessary to liability or immunity rulings |
Key Cases Cited
- Raiche v. Pietroski, 623 F.3d 30 (1st Cir. 2010) (takedown of nonviolent, non‑resisting suspect not justified; denial of qualified immunity affirmed)
- Morelli v. Webster, 552 F.3d 12 (1st Cir. 2009) (use of force causing rotator cuff injury in response to minor offense unconstitutional; immunity denied)
- Alexis v. McDonald’s Rests. of Mass., Inc., 67 F.3d 341 (1st Cir. 1995) (sudden violent removal of patron who refused orders could be excessive force)
- Graham v. Connor, 490 U.S. 386 (1989) (governing factors for objectively reasonable force)
- Tennessee v. Garner, 471 U.S. 1 (1985) (use of deadly force standard; informs analysis of necessity and threat in arrests)