Davis v. City of Columbus

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TIMOTHY DAVIS, :

:

Plaintiff, : Case No. 2:17-cv-0823

:

v. : Chief Judge Algenon L. Marbley

:

CITY OF COLUMBUS, OHIO, et al., : Magistrate Judge Chelsey M. Vascura

:

Defendants. :

OPINION & ORDER

This matter is before the Court on Plaintiff’s Motion for a New Trial (ECF No. 129). For

the reasons that follow, Plaintiff’s Motion is GRANTED IN PART and DENIED IN PART.

Plaintiff is entitled to a limited retrial under Fed. R. Civ. P. 59(a), as detailed herein.

I. BACKGROUND

The facts underlying this case are set forth in the Court’s Opinion & Order of September

27, 2021 (ECF No. 91), denying Defendants’ Motion for Summary Judgment. Briefly, this is a

civil rights action brought under the Fourth Amendment and 42 U.S.C. § 1983 against the City of

Columbus and eight Officers of the Columbus Division of Police (“CPD”): Defendants Matthew

Baker, Alan Bennett, Sean Connair, Eric Everhart, Anthony Johnson, LeVon Morefield, Robert

Reffitt, and Ryan Steele. Plaintiff Timothy Davis alleges these Officers used excessive and

unconstitutional force in effecting his arrest on outstanding warrants, and that the City is liable for

the same.

A jury trial commenced on December 6, 2021. Plaintiff called each of the eight Defendant

Officers, bystander Michael Woodson-Levey, treating physician Dr. Brian Mussio, Commander

Robert Meader, Lieutenant Edward Hasson, former Chief of Police Kimberley Jacobs, Deputy

Chief Richard Bash, Internal Affairs investigator Sergeant Joseph Johnson, and expert Dr. Roy

Taylor. Plaintiff was the last to testify during his case in chief. At the close of Plaintiff’s case,

Defendants moved for judgment as a matter of law, which the Court denied. During Defendants’

case, they called each of the eight Defendant Officers, Chief Jacobs, Commander Nicholas

Konves, Deputy Chief Bash, and expert Officer Patrick Vehr. Defendants renewed their motion

for judgment as a matter of law, which the Court again denied.

After ten days of testimony, the jury was charged on December 21, 2021. The jury

deliberated and, the next day, returned a verdict for Defendants on all counts. (ECF No. 119). The

Court entered judgment accordingly. (ECF No. 120).

On January 19, 2022, Plaintiff filed his Motion for a New Trial, in which he argued the

verdict was against the clear weight of the evidence. (ECF No. 129 at 3–9). As other grounds for

relief, Plaintiff also identified prejudicial occurrences relating to racial stereotyping, expert

testimony, and juror conduct. (Id. at 9–17). Following full briefing (ECF Nos. 134 & 138), the

Motion stands ripe for adjudication.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 59(a)(1)(A), “[t]he court may, on motion, grant

a new trial on all or some of the issues—and to any party—as follows: after a jury trial, for any

reason for which a new trial has heretofore been granted in an action at law in federal court.”

Determining whether a new trial is appropriate is within the discretion of the trial court. See Acuity

Mut. Ins. Co. v. Frye, 471 F. App’x 431, 435 (6th Cir. 2012) (internal citation omitted).

Generally, a court “should grant a motion for new trial only when a jury has reached a

seriously erroneous result as evidenced by: (1) the verdict being against the weight of the evidence;

(2) the damages being excessive; or (3) the trial being unfair to the moving party in some fashion,

i.e., the proceedings being influenced by prejudice or bias.” Mitchell v. Boelcke, 440 F.3d 300, 303

(6th Cir. 2006) (internal quotation marks omitted) (citing Holmes v. Massillon, 78 F.3d 1041,

1045–46 (6th Cir. 1996)). “When ruling on a new trial motion claiming that the verdict was against

the weight of the evidence, the district court ‘may compare the opposing proofs and weigh the

evidence.’” Conte v. Gen. Housewares Corp., 215 F.3d 628, 637 (6th Cir. 2000) (quoting Toth v.

Yoder Co., 749 F.2d 1190, 1197 (6th Cir. 1984)).

The court may not “set aside the verdict simply because it believes that another outcome is

more justified.” Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007). “The court is

to accept the jury’s verdict ‘if it is one which reasonably could have been reached.’” Id. (quoting

Duncan v. Duncan, 377 F.2d 49, 52 (6th Cir. 1967)). However, “where an injustice will otherwise

result, the trial judge has the duty as well as the power to order a new trial.” Davis v. Jellico Cmty.

Hosp. Inc., 912 F.2d 129, 133 (6th Cir. 1990) (internal quotation marks omitted).

III. LAW & ANALYSIS

Before delving into the substance of Plaintiff’s Motion, some clarity is due on the scope of

relief available. Despite the Motion’s caption, Plaintiff seeks a new trial in the alternative; his

primary request is that the Court “alter or amend the judgment,” pursuant to Fed. R. Civ. P. 59(e),

to prevent “manifest injustice.” (ECF No. 129 at 1–2). The supporting arguments merge, with

Plaintiff contending that the jury’s verdict was manifestly unjust in light of the evidence adduced

at trial.

Plaintiff does not state whether he intends for the Court merely to set aside the judgment

as part of a new trial order, or to reverse the jury’s verdict and enter judgment in his favor. If

Plaintiff intends the latter, his Motion is functionally one for judgment as a matter of law. Plaintiff

did not make such a motion at trial, so he is precluded from bringing one now. See Hanover Am.

Ins. Co. v. Tattooed Millionaire Ent., LLC, 974 F.3d 767, 770–71 (6th Cir. 2020) (holding it is

“impermissible” for a party to “make a Rule 50(b) motion if it has not previously made a Rule

50(a) motion”). A Rule 59(e) motion is no substitute; it “may not be granted where to do so would

undermine the jury’s fact-finding role and trample on the defendant’s seventh amendment right to

a jury trial.” Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 742 (1st Cir. 1982); see also

11 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2810.1 (3d ed.).1 Rule 59(e)

also “‘may not be used to relitigate old matters, or to raise arguments or present evidence that

could have been raised prior to the entry of judgment.’” Exxon Shipping Co. v. Baker, 554 U.S.

471, 485 n.5 (2008).

The proper vehicle for Plaintiff’s arguments is a Rule 59(a) motion for a new trial.

Naturally, a new trial may mean abrogating the original jury verdict and judgment entry; but that

is the most Plaintiff can obtain under Rule 59(a). A judgment for Plaintiff cannot occur without a

second trial. As such, Plaintiff’s Motion will be analyzed under the standards applicable to a new

trial motion, rather than a motion to alter or amend judgment.

A. Weight of the Evidence

Plaintiff’s first argument for a new trial is that “the jury’s verdict was seriously erroneous

and against the clear weight of the evidence presented at trial.” (ECF No. 129 at 3). Based on that

evidence, Plaintiff states, “no reasonable jury could find that each and every one of the dozens of

uses of force against Timothy Davis was justified.” (Id.).

The jury received the following instruction on excessive force:

NO. 22: EXCESSIVE FORCE

Plaintiff claims that Defendant Police Officers used excessive force when they

arrested Plaintiff. In making a lawful arrest, a law enforcement officer has the right

to use such force as is necessary under the circumstances to effect the arrest.

1 But see Abrahamsen v. Trans-State Express, Inc., 92 F.3d 425, 429 (6th Cir. 1996) (relief from judgment under Rule

60(b) was warranted where “new evidence” rendered the jury’s finding “unreasonable”).

Whether or not the force used in making an arrest was unreasonable is a question

to be determined by you in light of all of the evidence received in the case.

You must determine the degree of force that a reasonable and prudent police officer

would have applied in effecting the arrest under the circumstances shown from the

evidence received in this case. In determining whether Defendant Police Officers

used excessive force, you may consider:

1) The extent of the injury suffered,

2) The need for the application of force,

3) The relationship between the need and the amount of force used,

4) The threat reasonably perceived by the responsible officials, and

5) Any efforts made to temper the severity of a forceful response.

You must consider each stage of the incident between Defendant Police Officers

and Plaintiff independently. An excessive use of force may be present at one point

during the arrest but not present at other points.

The reasonableness of a particular use of force must be judged from the perspective

of a reasonable officer on the scene, rather than with hindsight. The nature of

reasonableness must allow for the fact that police officers are often forced to make

split-second judgments—under circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular situation.

This reasonableness inquiry is an objective one. The question is whether Defendant

Police Officers’ actions were objectively reasonable in light of the facts and

circumstances confronting them, without regard to their underlying intent or

motivation.

(Jury Instruction No. 22, adapted from 3B Fed. Jury Prac. & Instr. § 165.23 (6th ed.); see ECF No.

149, Tr. 116:14–117:21).

In accordance with this instruction, the Court will consider Plaintiff’s arrest in stages. See

also Gaddis v. Redford Twp., 364 F.3d 763, 772 (6th Cir. 2004) (“In this circuit, courts faced with

an excessive force case that involves several uses of force must generally ‘analyze the . . . claims

separately.’” (quoting Dickerson v. McClellan, 101 F.3d 1151, 1162 (6th Cir. 1996))). The Court

will “apply an objective standard, looking to ‘the facts and circumstances of each particular case,

including [1] the severity of the crime at issue, [2] whether the suspect pose[d] an immediate threat

to the safety of the officers or others, and [3] whether he was actively resisting arrest or attempting

to evade arrest by flight.’” Id. (alterations original) (quoting Russo v. City of Cincinnati, 953 F.2d

1036, 1044 (6th Cir. 1992); and Graham v. Connor, 490 U.S. 386, 396 (1989)).

1. Initial Encounter

The initial portion of the arrest—when Officers Johnson, Morefield, Everhart, and Connair

first entered the Livingston Market—is not captured on video. The debate at trial centered on

whether Officers ever informed Plaintiff he was under arrest. Officer Johnson, who was first into

the market, testified that he did announce himself—“something to the effect” of “Columbus police,

you’re under arrest for your warrants, man.” (ECF No. 141, Tr. 165:17–167:10). Per Officer

Johnson’s testimony, Plaintiff replied “No, I’m not,” then “began to push and pull [Officer

Johnson] against the door.” (Id., Tr. 167:13–168:3). Officer Johnson also testified—and later-taken

video footage corroborated—that he was wearing a badge and a tactical vest with “POLICE” in

prominent lettering. (See id., Tr. 168:15–169:5). Sergeant Morefield,2 who was covering Officer

Johnson, testified that he witnessed Plaintiff’s resistance and, in response, struck Plaintiff twice in

the face and once in the rib, intending “to discombobulate him temporarily” so Officers could “take

control of him.” (ECF No. 147, Tr. 36:21–38:23).

Plaintiff claimed he was punched in the face without warning, and that he never realized

the Officers were policemen. (See ECF No. 145, Tr. 113:20–115:8). Michael Woodson-Levey, a

bystander who recorded cell phone video of the later stages of the arrest, testified that he also did

not hear the Officers announce themselves. All he heard was “N-word, don’t move.” Mr.

Woodson-Levey initially thought “someone was possibly getting robbed.” (See ECF No. 140, Tr.

69:7–70:21).

2 Sergeant Morefield held the rank of Officer at the time of Plaintiff’s arrest. He recently was elevated to Sergeant.

(See ECF No. 139, Tr. 53:13–54:4).

Given the absence of objectively verifiable evidence, the jury reasonably could have

accepted Defendants’ version of the initial encounter. The Court acknowledged as much when it

denied Defendants’ renewed motion for judgment as a matter of law. (See ECF No. 148, Tr.

220:19–221:9).3 For the Court to set aside this portion of the verdict, it would have to make

credibility determinations as between Plaintiff and Mr. Woodson-Levey, on the one hand, and

Defendant Officers on the other. “[C]redibility determinations are within the sole province of the

jury” and are owed “special deference” by the Court. United States v. Miller, 562 F. App’x 272,

295 (6th Cir. 2014) (citing United States v. Latouf, 132 F.3d 320, 330–31 (6th Cir. 1997)). With

respect to these first uses of force, the verdict must stand.

2. Middle Stage

Shortly after Defendants’ initial uses of force, Mr. Woodson-Levey began recording the

arrest. Mr. Woodson-Levey first captured a short, four-second clip (admitted as Joint Exhibit 4) of

3 Defendants cite the Court’s oral ruling for a much broader acknowledgement, “that a reasonable jury could find in

favor of the Plaintiff or the Defendants.” (ECF No. 134 at 3). Context, however, is key. The full passage reads:

The case is reasonably simple to me. If the jury believes the police officers, then there was a

reasonable use of force. The jury would have to believe that what we can’t see is what we should

believe. That is, we don’t see the initial encounter, the police officers announcing their office, Mr.

Davis reacting to Officer Johnson, pushing him, pushing the other officers out of the way. And if

they believe that testimony -- which they very well could because the tape shows that the police had

vests on that said police; so maybe Mr. Davis knew that they were police.

(Id. (emphasis added)). All the evidence discussed in this passage relates to “the initial encounter.” The Court did not

rule, much less intimate, that if the jury credited Defendants’ version of these opening events, a full defense verdict

would be warranted.

Earlier, in denying Defendants’ initial motion for judgment as a matter of law, the Court had made clear that Plaintiff’s

case did not rise or fall on this initial encounter:

The jurors could even reach the conclusion of excessive force if they believe the officers, that the

officers identified themselves, punched him beside the head and then it went from there; some of

which we could see, some of which we could not see. That could still amount to excessive force,

especially when you factor in the tasing, the multiple tasing, and the punches and kicks. It was quite

thorough, the takedown and the incessant punching and kicking. And so a jury could believe that

that was excessive.

(ECF No. 145, Tr. 189:16–24 (emphasis added)).

Plaintiff and Officer Connair falling into a stack of food and soda. Officer Connair claimed he was

“knocked down” into the boxes while “attempting to gain control” of Plaintiff. (See ECF No. 140,

Tr. 133:18–138:25). Officer Johnson, also in frame, testified that he used his knee to strike

Plaintiff’s “common peroneal” (a nerve on the side of the knee), intending to cause Plaintiff to fall

forward. (See ECF No. 141, Tr. 199:22–203:22). Officer Johnson asserted that this strike did not

cause Plaintiff’s fall; rather, Plaintiff “was tackling Connair and then fell over the chip rack.” (See

id., Tr. 203:5–22). Plaintiff testified he was “slammed” or “pushed” into the chip rack, but he

admittedly based this on the video, as his own recollection was unclear. (See ECF No. 145, Tr.

153:23–157:5). With respect to these uses of force, the video exhibit is ambiguous on whether

Plaintiff “tackled” an Officer. It was not unreasonable for the jury to credit Defendants’ account,

so again the verdict must stand.

After a short gap, Mr. Woodson-Levey captured a second video that is four and a half

minutes long (admitted as Joint Exhibit 2). Initially Plaintiff was on the ground, with Officers

Johnson, Connair, and Everhart around him. A comment can be heard about “going to sleep.”

Though no Officer admitted to the statement, Officer Everhart confirmed he put Plaintiff in a

headlock during this portion of the video. Officer Everhart explained that the headlock was

intended to control Plaintiff and keep him on the ground, and that a proper headlock is distinct

from a chokehold. (See ECF No. 141, Tr. 38:17–52:4). Officers Connair and Johnson confirmed

that choking would be considered lethal force on CPD’s continuum, which would not have been

justified. (See ECF No. 140, Tr. 139:19–142:4; ECF No. 141, Tr. 197:3–198:8).

A few more seconds into the video, Officer Johnson delivered a series of four or five strikes

to Plaintiff’s back. (See id., Tr. 199:5–12). Officer Johnson explained that, around this time,

Plaintiff had grabbed Officer Johnson’s hand and was “squeezing and twisting [his] fingers.” (See

ECF No. 145, Tr. 221:24–223:18). Officer Johnson also claimed that Plaintiff bit him on the

forearm, though he could not identify when this occurred on the video. (See id., Tr. 222:12–23).

Officer Connair testified to another attempted bite from Plaintiff, which he likewise could not

place on the video. (See ECF No. 146, Tr. 113:15–25, 124:5–22).

Plaintiff then came to his feet, while his pants came down, exposing his bare genitalia. It

is disputed whether Plaintiff stood on his own power or was lifted by an Officer. Viewing the

video, Officer Connair stated “[i]t appears that Mr. Davis stood up.” (ECF No. 140, Tr. 142:18–

22). Officer Johnson similarly testified that Plaintiff “began to try to stand up with [Officer

Johnson] on his back.” (ECF No. 145, Tr. 221:24). Officers Everhart and Morefield were standing

aside in the video and were not engaged directly with Plaintiff at that moment.

While Plaintiff briefly was on his feet, Officer Connair delivered a punch to Plaintiff’s face

with handcuffs in his hand. Officer Connair explained that he was grasping the hinge between the

handcuffs and had no time to put them away. Officer Connair was confident that the metal did not

contact Plaintiff’s face, so he documented the force as level four (“hard empty hand control”)

rather than level five (“use of impact weapon”) in his use-of-force report. (See ECF No. 140, Tr.

142:22–145:5, 152:20–159:6). For his part, Plaintiff did not have any conscious memory of the

blow by Officer Connair. (See ECF No. 145, Tr. 115:19–23). The video then showed Plaintiff

being taken back to the ground, surrounded by Officers.

With respect to these uses of force, the verdict must stand. From the Officers’ testimony

and the video evidence, the jury reasonably could have concluded that Plaintiff managed to stand

up on his own power. Under that view of the video, force was necessary to bring Plaintiff back to

the ground and avert his potential flight. The strike by Officer Connair is a closer call. Sergeant

Joseph Johnson, who reviewed Plaintiff’s arrest as part of an Internal Affairs investigation,

acknowledged that holding handcuffs, even inside the fist, would increase the forcefulness of the

blow. Sergeant Johnson focused, however, on whether the handcuffs hit Plaintiff’s face, for which

he found insufficient evidence. (See ECF No. 144, Tr. 89:17–93:10). Sergeant Johnson conceded

that Plaintiff had suffered a laceration between his eyebrows, which is where the handcuff would

have made contact. (See id., Tr. 102:20–103:3). Dr. Roy Taylor, a Chief of Police from North

Carolina retained as Plaintiff’s expert, regarded the strike as “inappropriate” and “excessive,” even

standing alone, since it would “increase the damage that a strike could do to somebody’s face.”

(See id., Tr. 170:3–171:1). Nevertheless, if the jury credited Officer Connair’s testimony, the

handcuffs were not used as an impact weapon, and it was not feasible for Officer Connair to put

them away before delivering his strike. Given how the situation was evolving, with Plaintiff

potentially rising to his feet, the Court cannot say it was “seriously erroneous” for the jury to

resolve this conflicting evidence as it did. Mitchell, 440 F.3d at 303.

3. Final Stage – After Plaintiff is Pinned

For the final four minutes of Mr. Woodson-Levey’s video, Plaintiff was on the ground

surrounded by Officers—including uniformed backup Officers, who by then had arrived. The

video did not give a complete view; Plaintiff’s upper body was obscured by a rack of food, and

Mr. Woodson-Levey briefly moved the camera so Plaintiff was out of frame. Generally, though,

Plaintiff’s lower body was visible. Officers’ commands and blows were audible, as were Plaintiff’s

calls for help.

Officer Bennett, one of the uniformed backup Officers, was captured on the video

administering 11 taser cycles, each lasting 5 seconds, while Plaintiff was on the ground. Officer

Bennett testified that he applied both a “drive-stun” and a “close-quarter probe deployment,”

attempting to achieve pain compliance and neuromuscular incapacitation such that Plaintiff could

be “cuff[ed] under power.” (See ECF No. 143, Tr. 96:21–99:18, 109:2–24). The data downloaded

from Officer Bennett’s taser (admitted as Joint Exhibit 6) showed that all 55 seconds of tasing

were administered within a span of 1 minute, 28 seconds. The gap between cycles was as low as

1 second; the longest was 8 seconds, when the taser had to be reset. As justification for each

additional taser cycle, Officer Bennett testified that Plaintiff was continuing active resistance,

including “[n]ot providing his arms by holding them under his body, kicking his feet, bucking his

body, [and] pushing up off the ground.” (See id., Tr. 118:21–135:21).

Meanwhile, multiple Officers testified they were using force to bring Plaintiff into a prone

position. Officer Baker delivered “approximately seven to eight” knee strikes and punches to

Plaintiff’s left side (see ECF No. 141, Tr. 10:11–15:15); Officer Steele delivered seven strikes to

Plaintiff’s left and right shoulders (see ECF No. 142, Tr. 106:19–108:4); and Officer Reffitt

delivered approximately nine kicks to Plaintiff’s back, leg, and side (see ECF No. 143, Tr. 46:8–

54:17). During the Internal Affairs investigation, Sergeant Johnson found Officer Reffitt’s kicks

to be unreasonable because “[a]t that time Mr. Davis was passively resisting and had multiple

officers already on top of him.” (See ECF No. 144, Tr. 123:10–126:15). This was the only use of

force found to be out of policy. Officer Reffitt’s chain of command, up to Deputy Chief Richard

Bash, disagreed with the finding and exonerated Officer Reffitt on the grounds that Plaintiff’s

resistance was active. (See id., Tr. 69:12–73:15).

The video showed Officers standing up, relaxed, around the 3:30 mark. Officer Connair

testified that he and Officer Reffitt each had managed to place a handcuff on one of Plaintiff’s

hands, then they linked the two sets behind Plaintiff’s back. (See ECF No. 146, Tr. 110:8–13). It

is undisputed that all force ceased once Plaintiff was in handcuffs.

On these uses of force, the weight of the evidence is problematic. Once Plaintiff was pinned

to the ground by four, five, and six Officers—versus two, earlier in the arrest—the risk of flight

and ability to resist all but vanished. To borrow Defendants’ recurring metaphor, Plaintiff was not

“wrestling” at this point in the arrest. He was down for the count:

Q. Did you ever like have the instinct to try to fight back?

A. No, ma’am. The first punch really got me. So I was -- I couldn’t even fight back

if I wanted to. I couldn’t. My arms -- like I guess when you boxing and when you’re

in the boxing ring and somebody pounding on you so much, you can’t lift your

arms. So the ref comes and stops the fight because they see you can’t defend

yourself anymore. That’s the point I was at. I was at that point. I couldn’t move. I

couldn’t lift my arms to do anything. I couldn’t do anything.

(ECF No. 145, Tr. 115:9–18).

In opposing a new trial, Defendants attempt to create a credibility contest between

themselves and Plaintiff. (See ECF No. 134 at 4–5). No such findings are necessary. Even giving

full credence to Defendants’ explanations, and minimal weight to Plaintiff’s recollections, the

jurors had enough objective evidence to assess the situation themselves. From that evidence, the

jury should have concluded that the force utilized was greater than necessary. Through Dr. Taylor’s

testimony, Plaintiff established that 15 seconds of cumulative tasing is considered the limit by

national research groups and the manufacturer itself, due to the danger of heart damage and

ligament tearing. (See ECF No. 144, Tr. 154:15–155:3, 164:17–165:5). Plaintiff, however,

received 55 seconds of tasing, concurrent with other uses of force. Sergeant Johnson testified he

had never reviewed another case with more than 5 taser cycles, and he agreed it would be improper

to utilize kicks, stomps, or knee strikes while an individual is being tased. (See id., Tr. 117:10–

119:12) (emphasis added). Furthermore, this force all occurred while Plaintiff was pinned.

Commander Nicholas Konves, who reviewed the Internal Affairs investigation in Officer Reffitt’s

chain of command, estimated that “at least six” Officers were on top of Plaintiff, weighing

approximately 1,200 pounds. (ECF No. 148, Tr. 32:24–33:5). It would defy credulity to conclude

these Officers were not in control.

Nonetheless, some Officers claimed Plaintiff was continuing physically to resist from the

bottom of the pile. Officer Johnson claimed Plaintiff was “refusing to give [Officers] his hands”

and was “yanking away from officers” as they attempted to handcuff him. (ECF No. 145, Tr.

227:7–19). Even if the jury gave full credit to these off-camera events, it was not reasonable to

conclude that Plaintiff’s mere refusal to move would justify the barrage of force to which he was

subjected. Initially, Officer Reffitt claimed a more severe form of resistance, stating in his use-of-

force report that Plaintiff had kicked him. However, Officer Reffitt walked this claim back after

being confronted on the stand with his worker’s compensation paperwork, which made no mention

of any such kick. (See ECF No. 147, Tr. 175:2–176:20, 180:1–186:16 (“Q: This says nothing about

Mr. Davis kicking you in the form you completed to have workers’ compensation as a result of

your interaction … on September 1st, 2017, correct? A: Correct.”).

The force never relented to give Plaintiff a reasonable chance to comply. Plaintiff had as

little as one second between Officer Bennett’s taser cycles in which to regain control of his muscles

and comply with commands. (See ECF No. 143, Tr. 159:2–160:12). Similarly, Officer Baker left

Plaintiff less than one second between knee strikes in which to give up his hands. (See ECF No.

147, Tr. 158:6–159:14). Neither reported any allowance for Plaintiff’s ability to move under 1,200

pounds of weight, nor for his dazed state after multiple taser cycles and prior blows to the head.

Furthermore, several Defendant Officers evidently based their continued force on Plaintiff’s

involuntary reactions to other uses of force. Bucking, yanking, or tensing were natural reactions to

being tased. CPD training, as reported by Officer Vehr, specifically covered the potential for

involuntary muscle contractions and mental daze following a taser cycle. (See ECF No. 148, Tr.

195:15–198:17). Similarly, forming a protective posture around vital organs (not to mention,

genitals) is how one naturally would brace for further blows and avoid being crushed against the

market floor. Still, Defendant Officers concluded in as little as one second that Plaintiff was

choosing to resist and that additional force was necessary.

To be certain, Defendant Officers had a legitimate law enforcement need to end the arrest

and bring Plaintiff into custody. Initially, there was an appreciable risk that Plaintiff might flee or

assault Officers—as Plaintiff allegedly had done in prior encounters with law enforcement, leading

to his outstanding warrants. The problem is that the force used in the late stage of Plaintiff’s arrest

exceeded those needs, based on the clear weight of the evidence. There was no credible risk that

Plaintiff could flee once he was pinned under four or more Officers. No Officer testified that

Plaintiff was armed, nor that they believed he might be armed at that stage of the arrest. By their

own accounts, Defendant Officers rested these late uses of force of Plaintiff’s refusal to give

himself up, not on the potentially assaultive behavior they described earlier in the arrest.

Defendants did not make a qualified immunity argument in briefing, though the issue did

arise at trial. In any event, the jury could not reasonably have found for Defendants on this ground,

either. When Plaintiff was arrested in 2017, reasonable Officers would have known “that ‘the

gratuitous or excessive use of a taser’ violates a clearly established constitutional right.” Goodwin

v. City of Painesville, 781 F.3d 314, 327 (6th Cir. 2015) (quoting Landis v. Baker, 297 F. App’x

453, 463 (6th Cir. 2008)). For this reason, the Goodwin court affirmed a denial of qualified

immunity where the Officer had “continued tasering [the subject] as he was obviously convulsing

and powerless to respond to the officers’ commands.” Id. In Kijowski v. City of Niles, the court

again took the view that rapid-succession taser cycles would not receive qualified immunity: “If

the second shock actually followed on the heels of the first, the only tenable conclusion is that it

would have been impossible for [the subject] to muster any fight.” 372 F. App’x 595, 600 (6th Cir.

2010). See also Harmon v. Hamilton Cty., 675 F. App’x 532, 541 (6th Cir. 2017) (“Whether [the

subject] was refusing to relinquish his right arm or whether he was unable to do so is material to

determining whether the use of force employed by [the officer] was excessive.”). Plaintiff argues

that Defendants never gave him “time to comply with commands” amidst the many applications

of force (ECF No. 129 at 7), and the trial evidence supported his position.

In Rudlaff v. Gillispie, a qualified immunity case more favorable to Defendants, the Sixth

Circuit described a “simple dichotomy”: “When a suspect actively resists arrest, the police can use

a taser (or a knee strike) to subdue him; but when a suspect does not resist, or has stopped resisting,

they cannot.” 791 F.3d 638, 642 (6th Cir. 2015). Defendants argued at length that any use of

Plaintiff’s muscles would qualify as active resistance. Rudlaff partially supports their claim—at

least, if the refusal to move one’s hands “is coupled with other acts of defiance.” Id. at 641. Yet,

even if Plaintiff’s resistance is considered “active” in this sense, it would not unlock the full

panoply of permissible force. Officer Vehr, Defendants’ own expert, crafted a distinction between

“a low level active resistance” and “aggressive active resistance . . . where now the suspect is

assaulting the officer.” (ECF No. 148, Tr. 117:5–18). Different force would be justified against a

subject whose aggressive resistance “poses an immediate threat to the safety of the officers or

others,” Graham v. Connor, 490 U.S. 386, 396 (1989), versus one who is controlled but refuses to

submit to cuffing. In fact, Rudlaff confirms that “the officers can use the amount of force necessary

to ensure submission”—in that case, a “one-time taser shot and knee strike.” 791 F.3d at 643

(emphasis added). Defendants’ other choice case, Williams v. Sandel, involves a subject who was

loose on a busy motorway, presenting a clear public safety risk. 433 F. App’x 353, 362–63 (6th

Cir. 2011).

Here, reasonable Officers objectively would have known that 11 taser applications and tens

of other blows, all in quick succession while Plaintiff was pinned to the ground and calling for

help, violated Plaintiff’s Fourth Amendment right to be free from excessive force. A reasonable

verdict, aligned with the clear weight of the evidence, would have found the same.

4. Summary

The evidence in this case was disturbing. Defendants beat and electrocuted Plaintiff, very

nearly to death, even though he was unarmed, outnumbered, and generally contained at the end of

the arrest. Dr. Brian Mussio’s pre-recorded video deposition, which Plaintiff played during trial,

showed that Plaintiff was admitted to the hospital for acute renal failure, requiring days of

treatment. Dr. Mussio explained that the toxins in Plaintiff’s bloodstream were consistent with

substantial trauma and breakdown of muscular tissue. Conceivably, the jury could have justified

the initial uses of force while Officers attempted to take control of the situation. Yet, once Plaintiff

was pinned to the floor by 1,200 pounds of weight, the force only intensified. Defendants were

required to adapt their force to the situation before them, and the trial showed they did not. A

complete defense verdict, therefore, was against the weight of the evidence. To allow the verdict

to stand would be seriously erroneous—and a grave injustice.

Rule 59(a) expressly permits the Court to “grant a new trial on some or all of the issues.”

Fed. R. Civ. P. 59(a)(1) (emphasis added). “In deciding on the scope of a retrial, the court must

consider whether ‘it clearly appears that the issue to be retried is so distinct and separable from the

others that a trial of it alone may be had without injustice.’” Yehia v. Rouge Steel Corp., 898 F.2d

1178, 1184 (6th Cir. 1990) (quoting Gasoline Prods. v. Champlin Refining Co., 283 U.S. 494, 500

(1931)). Here, it is possible to separate the events in time, using the moment Plaintiff was pinned

to the ground as the dividing point. In the Court’s judgment, a partial retrial affords due respect to

the jury’s findings, while avoiding the injustice of a complete defense verdict.

On retrial, all claims will remain viable against all Defendants, since no Defendant Officer

ceased his force once Plaintiff went to the ground. This includes Plaintiff’s Monell claims against

the City of Columbus. The jury was instructed that it could not find against the City, on any Monell

theory, unless it first found an underlying deprivation of constitutional rights. (Jury Instruction

Nos. 24 & 25, adapted from 3B Fed. Jury Prac. & Instr. §§ 165:26 & 165:27 (6th ed.); see ECF

No. 149, Tr. 118:23–120:21). See also Thornton v. City of Columbus, 727 F. App’x 829, 838 (6th

Cir. 2018) (no municipal liability absent an underlying constitutional violation). Given the jury’s

verdict, it would not have reached the Monell claims. Defendants’ opposition brief also rests on

the jury’s finding of no underlying violation; it makes no argument that the Monell portion of the

verdict could stand independently. (See ECF No. 134 at 6–7). For clarity, the scope of permissible

evidence also will not shrink. The force used in the early stages of the arrest, whether reasonable

or not, is necessary context for the later stages. The difference will be in the jury instructions: for

liability and damages, the new jury will consider only those applications of force occurring after

Plaintiff was pinned.

B. Other Sources of Alleged Error

Plaintiff need not prevail on any other arguments. Still, for completeness, the Court has

reviewed Plaintiff’s remaining charges of error: (1) introduction of “harmful and highly prejudicial

racial stereotypes” by Commander Meader and other defense witnesses; (2) improper expert

testimony by Officer Vehr; (3) “multiple improper contacts and communications between

Defendants and jurors”; and (4) “the failure of a juror to disclose the extent of his relationship with

family members in law enforcement.” (ECF No. 129 at 9, 10, 12). None of these reasons, alone or

in combination, would have supported a new trial.

1. Racial Stereotypes

The first of Plaintiff’s remaining arguments is that “Defendants and Defendants’ witnesses

gave testimony that invoked harmful and highly prejudicial racial stereotypes against Plaintiff

Timothy Davis, a Black man.” (Id. at 9). Specifically, Plaintiff cites Commander Meader’s

testimony that “the black population, by statistics . . . disproportionately commit more crime.”

(ECF No. 142, Tr. 89:9–90:5; see ECF No. 129 at 10). Plaintiff also makes a general reference to

testimony about his supposed “superhuman strength.” (Id. at 9). Though the Motion does not cite

specific instances, Plaintiff’s reply brief discusses the testimony of Commander Konves and

Sergeant Morefield as indicative of this stereotype. (ECF No. 138 at 5–6).

The full exchange with Commander Meader is set forth below:

Q. Before we get into that, I want to go back to this Matrix report which I was

asking you before one of our sidebars. Are you aware that the Matrix report found

a disparity between policing of black people and of white people?

A. I don’t specifically recall that, but that would have validity.

Q. Do you believe that there is a disparity in the way that black populations and

white populations are policed by the Division of Police in Columbus?

A. I don’t think it’s based on race. It’s based on criminal behavior. Yes, I’m very

aware that the statistics reveal that there’s more force exacted upon the black

population than the white population because the black population, by statistics, by

-- as reported by victims, as reported by witnesses, disproportionately commit more

crime. That would be reflected in the current year’s homicide rate. It would be

reflected in any previous year’s homicide rate. And aggravated assaults, burglary,

robbery, you break down any of those statistics and you’re going to see a

disproportionate number of black people that commit more crime than white

people. So, ultimately, they’re going to be arrested at a higher rate and there’s going

to be more force exacted.

(ECF No. 142, Tr. 89:9–90:5).

Plaintiff, citing a study by the Bureau of Justice Statistics,4 clarifies that Black Americans

“do not commit ‘more’ violent crime than white Americans,” though Black Americans “are

‘overrepresented’ in violent crime arrest statistics for a variety of complex socioeconomic and

historical reasons.” (ECF No. 129 at 10). Nevertheless, Commander Meader’s inaccuracy would

not warrant a new trial. As Defendants note in their response brief, Plaintiff solicited this testimony

by asking Commander Meader for an opinion. (ECF No. 134 at 8–10). Plaintiff did not object to

the answer, nor did Plaintiff seek to clarify or impeach it. For those reasons, Defendants’ arguments

are well taken. Plaintiff cannot solicit testimony, decline to address it at trial, then claim the

testimony rendered his trial fundamentally unfair.

Proceeding to Commander Konves, the following exchange occurred:

Q. What items did you think were important regarding making a determination of

whether Mr. Davis was a threat to the safety of the officers or others?

A. There was a lot of things present in the investigation. There were multiple

officers on scene and attempting to get him under control. And you’ve got six, fully

grown men that are unable to get Mr. Davis into handcuffs for a significant amount

of time. This was -- in my career, this was the longest fight that I had ever witnessed

or seen, and that’s to date.

Multiple uses of force that are ineffective. They just aren’t doing what they’re

designed to do. We try to limit the amount of force we use. But these officers

switched it up. We train if a technique doesn’t work after a couple of times, try to

switch it up, try something different. And everything these officers was trying was

not working.

. . .

And he had bit an officer. He had picked up an officer that was six-three and 220

pounds on his back and slammed him into a door. That’s not an easy feat to do.

That was superhuman strength. He had thrown another officer into like a chip stand.

And he was not responding to multiple verbal commands. All of these things are

significant indicators. We had assaults on the officers. And then coupled with the

4 See Allen J. Beck, Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018, U.S. Dep’t of Justice (Jan.

2021), available at https://bjs.ojp.gov/content/pub/pdf/revcoa18.pdf.

history, we know there was a history there of assaults on law enforcement. So all

of that played a role.

(ECF No. 148, Tr. 20:12–21:17).

The Court soon called a sidebar, then instructed the jury to disregard the reference to

Plaintiff’s “superhuman strength”:

Ladies and gentlemen, I sustained the objection. I’m striking -- I’m having you

disregard Commander Konves’s testimony that Mr. Davis exhibited superhuman

strength. There’s no such thing as superhuman strength. And there has been a myth

about black superhuman strength. Black superhuman strength does not exist, just

as superhuman strength does not exist. I understand that might have been

hyperbole. But it’s hyperbole that deserves no place in the record or in your minds

as you consider this case. Please continue.

(Id., Tr. 23:22–24:5).

Defendants argue that a corrective instruction was the proper course (ECF No. 134 at 8),

and the Court concurs. The Court “presume[s] that the jury followed this instruction, unless [it]

conclude[s] that the evidence that was admitted was so prejudicial that [the movant] was deprived

of a fair trial.” United States v. Newsom, 452 F.3d 593, 604 (6th Cir. 2006) (internal citation

omitted). Commander Konves’s testimony, though improper, was corrected swiftly and

emphatically. The Court cannot discern any “‘overwhelming probability’ that [the curative

instruction was] ignored.” Scott v. Mitchell, 209 F.3d 854, 879 (6th Cir. 2000) (quoting Richardson

v. Marsh, 481 U.S. 200, 208 (1987)). As such, the testimony would not have warranted a new trial.

Lastly, the Court considers Sergeant Morefield’s testimony. By Plaintiff’s tally, Sergeant

Morefield “described Mr. Davis as ‘violent’ at least twelve times during direct examination.” (ECF

No. 138 at 6). Sergeant Morefield also testified his force was ineffective against Plaintiff, and that

he “‘had never been in a struggle like this.’” (Id.). Plaintiff did not object to this testimony, and he

admittedly “addressed many of these statements on cross-examination.” (Id. at 6). While Sergeant

Morefield’s statements might be viewed as embodying insidious stereotypes, the statements were

neither as explicit nor as severe as the ones discussed previously. It was proper for Sergeant

Morefield to testify about the arrest as he experienced it, and for Plaintiff to challenge that account

on cross-examination. As such, Plaintiff’s claim of prejudice is without merit.

2. Expert Testimony

Plaintiff also challenges the testimony of Officer Vehr, Defendants’ use-of-force expert, as

speculative and beyond the scope of his qualifications. (ECF No. 129 at 10–12). Plaintiff argues

that Officer Vehr, who conducts training for CPD Officers, “has never evaluated any uses of force

and has no training in how to do so,” and that he “is not qualified to offer opinions as to why the

defendant officers did or did not take certain actions.” (Id. at 11–12).

Plaintiff also had challenged Officer Vehr’s testimony in limine, arguing for exclusion

under Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). (See

ECF No. 103 at 6–11). Plaintiff advanced three specific defects in Officer Vehr’s report, which

the Court summarized as follows: “(1) Vehr possessed an insufficient foundation for his opinion

because he neglected to review the depositions and instead accepted the use-of-force investigations

as true; (2) Vehr relied on certain studies on ‘Action vs Reaction’ that are inapplicable to Plaintiff’s

arrest and beyond the scope of Vehr’s expertise; and (3) Vehr opined on legal issues that are

properly decided by the jury.” (ECF No. 118 at 5). The Court denied this motion and permitted

Officer Vehr to testify “within [his] expertise in defensive tactics training,” including on “the

contents and conclusions of his report.” (Id. at 6). Defendants argue that the Court properly ruled

on these issues in limine. (ECF No. 134 at 12–13).5 Plaintiff’s reply brief makes no further mention

of Officer Vehr’s testimony, tacitly ceding the matter. (See generally ECF No. 138).

5 Defendants also maintain that broader objections were not preserved at trial when Plaintiff merely “renew[ed] [his]

objections in the motion in limine.” (ECF No. 148, Tr. 103:15–16; see ECF No. 134 at 11–12). The Court need not

reach this claim.

While the arguments in the present Motion differ slightly from those considered in limine,

the prior reasoning stands. As CPD’s defensive tactics trainer, Officer Vehr was qualified by

“knowledge, skill, experience, training, or education,” Fed. R. Evid. 702, to opine on the various

uses of force through the lens of CPD policy. Officer Vehr has taught that very policy to recruits

and in-service Officers for about six years, and he holds multiple instructor certifications. (See

ECF No. 148, Tr. 99:20–103:3). Further, there is a subtle yet critical distinction between claiming

to know Defendants’ internal thought processes, which is an exercise in omniscience, and offering

an opinion on whether Defendants’ actions were reasonable and consistent with their use-of-force

training. Officer Vehr’s testimony fell under the latter, which again was within his competency.

“Reversal based on improper admission of evidence is appropriate only when the

admission interfered with substantial justice.” Morganroth & Morganroth v. DeLorean, 123 F.3d

374, 382 (6th Cir. 1997). The Court is not persuaded that Officer Vehr’s testimony was admitted

improperly here, nor that justice was disserved. Like the Court held in limine, the proper response

to Officer Vehr’s testimony was a competing expert and probing cross-examination, both of which

Plaintiff supplied. As such, the alleged deficiencies in Officer Vehr’s expert testimony would not

have warranted a new trial.

3. Juror Contacts

Next, Plaintiff raises the “improper contacts and communications between Defendants and

jurors.” (ECF No. 129 at 12). Three incidents underlie this claim, and the first two relate to the

same juror. First, court personnel witnessed Juror #2 making eye contact and exchanging nods

with one of the Defendants, Officer Baker, around the time of closing arguments and jury

deliberation. (Id. at 13). Later, it was adduced that Juror #2 also made a “one-line joke” with a

group of Defendant Officers in the public restroom. (Id. at 14). In response, Defendants argue that

neither the “casual comment in passing,” nor the “passive and unmemorable gestures of alleged

acknowledgement towards the Defendants,” suggests the juror’s decision-making was affected by

outside information or bias. (ECF No. 134 at 13–14).

Without any further information, the friendly nonverbal interactions between the juror and

Officer Baker plausibly could have been interpreted as communicating Juror #2’s view of the case,

revealing a preexisting bias, or both. When the Court was alerted to this possibility of bias or

misconduct, “a duty to investigate” was triggered. United States v. Shackelford, 777 F.2d 1141,

1145 (6th Cir. 1985). The Court substantiated Juror #2’s nonverbal nods with Officer Baker,

alerted the parties, and authorized a hearing pursuant to Remmer v. United States, 347 U.S. 227

(1954).6 This “Remmer hearing” occurred on January 13, 2022. Juror #2 testified at the hearing

and offered satisfactory explanations for each alleged contact. Juror #2 stated that he is

“personable,” generally “tr[ies] to look everybody in the eye,” and “would nod to anybody . . . just

to acknowledge folks were there.” (ECF No. 128, Tr. 23:20–24:8). The verbal contact in the

restroom was discovered during Juror #2’s testimony. The juror explained, though, that the “one-

line joke” was simple, juvenile humor, and that no substantive information was exchanged. (Id.,

Tr. 22:20–23:19).7

Because the burden of proof rests squarely with the party seeking a new trial, Juror #2’s

testimony about his own impartiality “is not inherently suspect.” United States v. Zelinka, 862 F.2d

92, 95–96 (6th Cir. 1988); see also United States v. Pennell, 737 F.2d 521, 531–33 (6th Cir. 1984)

(discussing abrogation of the former “presumptive prejudice” standard). Nothing else adduced at

the hearing cast any doubt on the truthfulness of Juror #2’s explanations. Tellingly, Plaintiff

6 See also Cunningham v. Shoop, 23 F.4th 636, 648–49 (6th Cir. 2022) (discussing Remmer hearing procedure in this

Circuit); Krause v. Rhodes, 570 F.2d 563, 567–68 (6th Cir. 1977) (applying Remmer in civil context).

7 Juror #2 was in the public restroom, rather than the separate juror restroom, when he encountered the Officers.

abandons any reference to Juror #2 in his reply brief (see generally ECF No. 138), a tacit

concession that these claims would not support a new trial.

The final contact was Sergeant Morefield’s verbal “outburst” in open court, made during

Plaintiff’s closing arguments. (ECF No. 129 at 14–15). As Plaintiff’s counsel recounted testimony

about prior discipline, intended to impeach the Sergeant’s credibility, Sergeant Morefield

interjected: “It’s not true.” (ECF No. 149, Tr. 32:19–22). The Court has little doubt jurors heard

the comment. It was audible to court personnel and spectators in the gallery, and it was included

in the official trial transcript.

By Plaintiff’s account, this comment “was made with the clear intent of communicating to

the jury and influencing the jury’s deliberations.” (ECF No. 129 at 15). Even if it was so intended,

the Court issued a strong corrective instruction, first to Sergeant Morefield (ECF No. 149, Tr.

49:5–51:6), then in the presence of the full jury:

Thank you for your patience, ladies and gentlemen. It is unfortunate that I must

address a matter with you.

During the closing argument of Ms. Gelsomino, when she was speaking of Officer

Morefield having catfished to get Mr. Davis to the market, Officer Morefield, most

inappropriately, said out loud, as several in the audience and my court reporter

heard: Not true. This was inappropriate. His statements -- or his statement in this

context is not evidence in this case . . . .

You must disregard that statement and any other statement that a defendant would

make, or a plaintiff would make, in this courtroom unless he or she is testifying as

a witness. And so I instruct you on the strongest terms I can that you are to disregard

those kinds of random and inappropriate statements. It was not proper, and I believe

that someone with Officer Morefield’s level of experience and training as a sergeant

would tell him that such was not proper in a lawsuit. I will not allow it in this case.

(Id., Tr. 51:9–52:3).

The Court considered the possibility of a mistrial and cautioned all counsel that it would

entertain such a motion if the disruptive behavior continued. (See id., Tr. 46:4–8). For a singular

“outburst,” though, the Court determined that a curative instruction was the appropriate remedy.

Such instructions are “presume[d] to have been effective unless there is an ‘overwhelming

probability’ that they were ignored.” Scott, 209 F.3d at 879 (quoting Richardson, 481 U.S. at 208).

Plaintiff’s allegations of prejudice do not overcome this presumption. Therefore, the Court remains

satisfied that a curative instruction, rather than a new trial, was the appropriate response to Sergeant

Morefield’s comment.

4. Voir Dire

Plaintiff’s last charge of error is that Juror #2—the same juror who testified at the Remmer

hearing—“failed to disclose during voir dire that his grandfather was an elected sheriff in Knox

County.” (ECF No. 129 at 16–17). Juror #2 clarified at the Remmer hearing that he has two

relatives in law enforcement: a niece in CPD, and a grandfather (now deceased) who had served

as the elected Knox County Sheriff for approximately 24 years. (ECF No. 128, Tr. 8:23–9:7,

10:21–11:9).

In his juror questionnaire, submitted prior to voir dire, Juror #2 listed his grandfather in

response to the following question: “Have you, a member of your family, or any other person you

regard as important to you . . . been a member/employee of any law enforcement agency?”8 Juror

#2 omitted his niece from the questionnaire. At voir dire, the Court asked: “Is there anyone with

relatives or close personal friends who are or have been employed by the Columbus Police

Department?” Juror #2 responded by disclosing his niece, and he affirmed his ability to be

impartial. Later, the Court asked: “Other than the individuals we’ve heard from, is there anyone

with relatives who are in law enforcement? . . . I’m not limiting it now to Columbus, but relatives

in law enforcement.” Juror #2 did not respond to this question.

8 The completed juror questionnaire is on file with the Court.

Had Juror #2 shared information about his grandfather at voir dire, it likely would have

prompted follow-up questioning. At the Remmer hearing, Juror #2 discussed the formative role his

grandfather played in his childhood. Juror #2 lived next door to his grandfather, spent many after-

school hours at the jail, and “admired” his grandfather as “a good role model.” (See ECF No. 128,

Tr. 9:13–13:6). Juror #2 agreed with the statement, offered by Plaintiff’s counsel, that his

relationship with his grandfather “formed beliefs and views that [he] had regarding law

enforcement at those young ages.” (Id., Tr. 13:3–6). In hindsight, Plaintiff argues “it is extremely

likely that Plaintiff would have struck [Juror #2] from the jury pool for cause, or at least exercised

a peremptory challenge to his participation on the jury.” (ECF No. 129 at 17).

Defendants respond that Plaintiff had all necessary information at his disposal. (ECF No.

134 at 16). This is accurate. Standing alone, neither the questionnaire nor the voir dire response

was complete; but together, they disclosed both the niece and the grandfather as relatives in law

enforcement. Plaintiff had the juror questionnaire in advance and could have used it to inquire

further about the juror’s relationship with his grandfather.

Another point, overlooked in the briefing, is that the Court’s question at voir dire did not

necessarily call for Juror #2 to disclose his grandfather. On review of the transcript, the Court

phrased its question in the present tense (“relatives who are in law enforcement”), and Juror #2’s

grandfather passed away long ago. The Court also excluded “individuals we’ve heard from”—

intending to avoid repetitive answers about relatives in CPD—which may have led Juror #2 to

conclude he should not answer again. (See ECF No. 128, Tr. 9:1–5). Nor did Plaintiff ask any

question that clearly called for Juror #2 to respond. After calling on specific jurors about their

relationship to law enforcement, Plaintiff posed a catch-all question: “does anybody feel that . . .

maybe this wouldn’t be the right case for you based on that set of circumstances?” By this point,

Juror #2 already had affirmed his ability to be impartial. Perhaps Juror #2 should have erred on the

side of full disclosure, but it is a stretch for Plaintiff to claim the answers were “willfully evasive

or knowingly untrue.” Clark v. United States, 289 U.S. 1, 11 (1933) (quoted, ECF No. 129 at 17).

To obtain a new trial based on concealment at voir dire, “a party must first demonstrate

that a juror failed to answer honestly a material question on voir dire, and then further show that a

correct response would have provided a valid basis for a challenge for cause.” McDonough Power

Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); see also English v. Berghuis, 900 F.3d 804,

813 (6th Cir. 2018). Importantly, not all omissions will rise to this level.

To invalidate the result of a three-week trial because of a juror’s mistaken, though

honest response to a question, is to insist on something closer to perfection than our

judicial system can be expected to give. A trial represents an important investment

of private and social resources, and it ill serves the important end of finality to wipe

the slate clean simply to recreate the peremptory challenge process because counsel

lacked an item of information which objectively he should have obtained from a

juror on voir dire examination.

McDonough Power, 464 U.S. at 555.

Under the circumstances, the Court is satisfied that any omission in Juror #2’s voir dire

was harmless error. The Court cannot conclude Juror #2 was dishonest and intentional, nor that a

challenge for cause would have been warranted. Between voir dire and the questionnaire, Juror #2

disclosed both relatives in law enforcement. He also affirmed at voir dire that he could serve as an

impartial arbiter. A new trial is not required merely because Plaintiff neglected to inquire further

or to use a peremptory strike.

IV. CONCLUSION

For the reasons stated above, Plaintiff’s Motion for a New Trial (ECF No. 129) is

GRANTED IN PART and DENIED IN PART. Though the jury’s verdict clears the threshold of

reasonableness as to certain uses of force, a complete defense verdict is against the clear weight of

the evidence adduced at trial. On that basis, and no other, Plaintiff is entitled to a partial new trial

pursuant to Fed. R. Civ. P. 59(a). Plaintiff may recontest Defendant Officers’ uses of force after

they had pinned Plaintiff to the ground, as well as municipal liability for the same. A new trial

order will issue under separate cover.

IT IS SO ORDERED.

bi > MARBL UZ

CHIEF UNITED STATES DISTRICT JUDGE

DATED: September 19, 2022

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