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.
No. 16-2107
United States Court of Appeals, First Circuit.
June 28, 2017
861 F.3d 296
Robert S. Sinsheimer, with whom Wesley B. Stoker and Sinsheimer & Associates were on brief, for appellee.
Before LYNCH, KAYATTA, and BARRON, Circuit Judges.
This excessive force case, brought under
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
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, 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 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
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 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
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):
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
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
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 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” 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.
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).
A. Qualified Immunity Framework
Qualified immunity protects public officials from
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, — U.S. —, 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 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, — U.S. —, 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 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. “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. 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. Id. 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” 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-
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 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 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
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 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
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.