Jennings v. Jones

United States Court of Appeals

For the First Circuit

No. 05-2522

ADAM JENNINGS,

Plaintiff, Appellant,

v.

KENNETH JONES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Lynch and Lipez, Circuit Judges.

Michael Bradley for appellant.

Rebecca Tedford Partington, Deputy Chief, Civil Division,

Rhode Island Attorney General's Office, for appellee.

August 17, 2007

LIPEZ, Circuit Judge. Appellant Adam Jennings, a member

of the Narragansett Indian Tribe, worked at a "smoke shop" operated

by the tribe and located on Indian tribal land in Charlestown,

Rhode Island. The smoke shop sold an array of cigarettes to

members of the tribe and the general public. During a search of

the smoke shop by the Rhode Island State Police, Jennings was

arrested for disorderly conduct. Jennings initially resisted the

arrest, requiring the use of force by state police officials to

subdue him. As a result of that confrontation, appellee Kenneth

Jones used an "ankle turn control technique" which broke Jennings'

ankle. Jennings brought suit under 42 U.S.C. § 1983 against Jones

and other officers, claiming that they had violated his Fourth

Amendment rights by using excessive force to restrain him.

Jennings also brought a claim under state law for battery.

Although a jury found in favor of most of the defendants,

it ruled for Jennings on his excessive force and battery claims

against Jones and awarded compensatory damages of $301,100. The

district court then granted Jones' post-verdict motion for judgment

as a matter of law, ruling for Jones on all three prongs of the

qualified immunity inquiry. It first held that there was no

constitutional violation because there was no evidence from which

a reasonable jury could have concluded that the force used to

subdue Jennings was excessive. It then concluded that, even if

there had been a constitutional violation, Jones was entitled to

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qualified immunity because the relevant law was not clearly

established and a reasonable officer would not have believed that

the force was excessive and thus in violation of the Fourth

Amendment. The court also granted judgment as a matter of law for

Jones on the battery claim. Along with his motion for judgment as

a matter of law, Jones filed motions for a new trial and a

remittitur. In contravention of Federal Rule of Civil Procedure

50, the district court did not rule on these motions.

On appeal, Jennings challenges the court's determinations

on his Fourth Amendment claim. After careful review, we conclude

that the court erred in granting qualified immunity to Jones.

First, viewing the evidence in the light most favorable to the jury

verdict, we conclude that the record establishes that Jones

violated Jennings' constitutional right to be free of excessive

force. Second, we find that this right was clearly established at

the time of Jennings' injury. Third, we conclude that a reasonable

officer in Jones' position would have believed that his actions

violated Jennings' constitutional right. Consequently, we vacate

the judgment of the district court and order reinstatement of the

jury award. However, because the district court failed to rule on

Jones' motions for a new trial and a remittitur in accordance with

Federal Rule of Civil Procedure 50, we remand to that court for a

ruling on those motions.

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I.

A. Factual Background

In reviewing a grant of judgment as a matter of law

following a jury verdict, "[w]e examine the record as a whole,

reading the evidence in the light most favorable to the jury

verdict." Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271,

275 (1st Cir. 2003).

On July 14, 2003, Jennings was at work in a trailer

referred to as the "smoke shop" owned and operated by the

Narragansett tribe and located on tribal land in Charlestown, Rhode

Island. The tribe and the State of Rhode Island were engaged in an

ongoing dispute about whether the tribe could sell cigarettes tax-

free.1 Pursuant to this dispute, the Rhode Island State Police had

obtained a warrant to seize the cigarettes at the smoke shop, and

several plain clothes officers were stationed inside the shop.

After uniformed officers arrived in marked cars in the parking lot,

the undercover officers inside the shop instructed Jennings to take

a seat behind the sales counter. Jennings initially grabbed onto

the counter, but then complied and seated himself behind the

counter. He also complied when the state police asked him to move

to a different seat.

1

This court addressed other issues arising out of this

dispute in Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16

(1st Cir. 2006)(en banc), which provides further background on the

events that precipitated the search of the smoke shop.

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Jennings testified that he was "upset" during these

events. He complained loudly that the Rhode Island police had no

right to be on his property, and he expressed concern over their

treatment of his mother, who was also in the shop. He repeatedly

used profanity in his comments.

Eventually, Officer Ken Bell asked Jennings to leave the

shop without informing him that he was under arrest for disorderly

conduct. A video taken by the state police shows that as Jennings

was leaving the shop, an officer issued an order to handcuff him,

and Jennings responded, "I'm not getting arrested." The video also

shows that Jennings resisted handcuffing and that several officers

subsequently wrestled him to the floor. Jones was one of the

officers involved in subduing Jennings. He used an ankle restraint

technique called the "ankle turn control technique" to control

Jennings' leg.

During this conflict, the officers repeatedly instructed

Jennings to stop resisting and to show them both of his hands

because they were concerned that he might have a weapon. Jennings

was initially unable to produce his left hand for handcuffing

because it was trapped underneath his body. Officer Hill, one of

the officers who was attempting to subdue Jennings, testified that

he pulled Jennings' left arm out from under his body. The video

shows that Hill then got up and walked away.

Jennings testified that he had ceased resisting before

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his arm was pulled out from underneath his body. About sixteen

months prior to the smoke shop confrontation, Jennings had broken

the ankle that Jones was restraining and had surgery performed on

it. The officer's use of the "ankle turn control technique" caused

Jennings considerable pain. Jennings informed Jones that the force

Jones was using was hurting his previously injured ankle. Jones

then increased the amount of force he was using and broke Jennings'

ankle.

On the video, several seconds elapse from the time that

Hill got up and left to the time that Jennings yelled in pain as

his ankle was broken.2 Within seconds after Jennings' injury, the

officers brought Jennings to his feet, already handcuffed, and

escorted him outside the smoke shop.

B. Procedural History

Jennings brought this action against Jones and several

2

There is some uncertainty as to the precise length of time

that elapsed between the time that Hill got up and the time that

Jennings yelled in pain. In his closing argument to the jury,

Jennings' attorney described the interval as "twelve seconds at

least," while Jennings' appellate brief describes the interval as

eighteen seconds, citing only to the videotape of the incident.

Although the videotape was played for the jury several times at

trial and the jury also viewed the videotape during its

deliberations, no one actually testified to the length of time that

elapsed. Jones' appellate brief describes the time as "12-15

seconds" without citation. Consequently, we will describe the

length of time as "several seconds." Dictionaries typically define

"several" as "being more than two but fewer than many in number or

kind." See Random House Dictionary of the English Language 1754

(2d ed. 1987). While this definition is necessarily inexact, we

can do no better with this record.

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other police officers seeking damages under 42 U.S.C. § 1983 for

excessive use of force and for battery under state law.3 The

officers moved for judgment as a matter of law after the close of

Jennings' evidence, raising the qualified immunity defense for the

first time.4 The court denied the motion with respect to Jennings'

excessive force claim against Jones,5 noting:

There was testimony as to Trooper Jones that

he continued twisting the ankle of Mr.

Jennings even after Mr. Jennings had been

subdued and even after Mr. Jennings says that

he told him that he'd had a previous injury to

the ankle and he was breaking the ankle. So as

to Detective Jones, there's enough evidence

from which a jury at this point could conclude

that the force was excessive.

The court did not explicitly address the issue of qualified

immunity. After the close of all the evidence, defendants renewed

3

This case originally was brought by Jennings, his mother

Paulla Dove Jennings, and Keith Huertas, another employee of the

smoke shop. The plaintiffs alleged a wide array of claims against

various defendants, including excessive force under the Fourth

Amendment, violation of equal protection under the Fourteenth

Amendment, negligent infliction of emotional distress, intentional

infliction of emotional distress, false imprisonment, and assault

and battery. Aside from Jennings' excessive force and battery

claims against Jones, all the claims were resolved in defendants'

favor, either by the court on defendants' motions for judgment as

a matter of law or by the jury in its verdict. No other plaintiffs

or defendants are involved in this appeal.

4

The government explains that it did not file a pretrial

motion raising the qualified immunity issue because Jones and other

officers were not named in their individual capacities until

shortly before the deadline for filing motions.

5

At this juncture, the court granted judgment as a matter of

law on various other claims that have no bearing on this appeal.

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their motion for judgment as a matter of law, but did not

specifically renew their qualified immunity argument. The court

again denied the motion with respect to Jennings' excessive force

claim against Jones,6 explaining:

[W]e have very different versions as to what

happened. According to Mr. Jennings, Trooper

Jones grabbed his ankle, he wasn't kicking, he

wasn't doing anything that would warrant it.

Trooper Jones grabbed his ankle, twisted his

ankle, he told him that he had had previous

surgery on the ankle, and that the ankle, he

was in the process of breaking his ankle. And

according to Mr. Jennings, Trooper Jones

actually increased the pressure on the ankle

and broke his ankle. . . . If the jury accepts

Mr. Jennings' version, it might very well find

that Trooper Jones used excessive force.

Again, the court did not explicitly address the issue of qualified

immunity.

The case was submitted to the jury, which awarded

Jennings $301,100 in compensatory damages for his claims against

Jones. Following the verdict, Jones moved for judgment as a matter

of law pursuant to Federal Rule of Civil Procedure 50(b) on the

ground that he was shielded from liability by the doctrine of

qualified immunity. Jones also moved for a new trial, or, in the

alternative, to amend the judgment by granting a remittitur.

The district court granted Jones' motion for judgment as

a matter of law, concluding that it had erred in submitting the

6

At this juncture, the court again granted judgment as a

matter of law on various other claims that have no bearing on this

appeal.

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case to the jury to determine whether excessive force was used and

ruling for Jones on all three prongs of the qualified immunity

inquiry. It first held that there was no constitutional violation

because there was no evidence from which a reasonable jury could

have concluded that the force used to subdue Jennings was

excessive. It then concluded that, even if there had been a

constitutional violation, Jones was entitled to qualified immunity

because the relevant law was not clearly established and a

reasonable officer would not have believed that the force was

excessive and thus in violation of the Fourth Amendment. In

granting judgment as a matter of law, the court also held that the

remaining motions for a new trial and for a remittitur had become

moot.7 This appeal ensued.8

II.

The issue before us is whether the district court

properly found appellee Jones entitled to qualified immunity from

damages. When a defense of qualified immunity is pressed after a

jury verdict, we have determined that "the evidence must be

construed in the light most hospitable to the party that prevailed

at trial." Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999);

7

As we shall explain, this ruling of mootness was incorrect.

See infra Section IV.

8

On appeal, Jennings does not contest the district court's

grant of judgment as a matter of law with respect to his state law

battery claim.

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see also Borges Colón v. Román-Abreu, 438 F.3d 1, 18 (1st Cir.

2006) (citing Iacobucci). In such an analysis, "deference should

be accorded to the jury's discernible resolution of disputed

factual issues." Iacobucci, 193 F.3d at 23. Thus, where the jury

has issued a general verdict, as it did here, we "view[] the facts

in the light most favorable to the verdict." Whitfield v.

Meléndez-Rivera, 431 F.3d at 8. This view of the facts persists

throughout the three prongs of the qualified immunity analysis.

See Borges Colón, 438 F.3d at 19 (rejecting, on the third prong of

the qualified immunity analysis, a factual scenario proposed by

defendants on the ground that "a jury easily could have found that

this was not so").

In this case, we must take this approach with respect to

a critical factual dispute: whether Jones increased the force he

applied after Jennings already had ceased resisting for several

seconds. Jennings' claim of excessive force does not rest on the

allegation that Jones merely used the ankle turn control technique,

but rather that Jones increased the amount of force he applied

after Jennings had stopped resisting and stated that Jones was

hurting his previously injured ankle. Indeed, this theme of

increased force by Jones without justification was the core of

Jennings' case.

Jennings' opening statement immediately described this

version of events to the jury. His attorney stated: "[O]ther

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witnesses will say that [Jennings] was warning [Jones] that he was

breaking his leg. The evidence will show that . . . the way

[Jones] responded to that information was to twist harder, even

though there was no reason to be twisting at all." At trial, three

witnesses testified about Jones' restraint of Jennings. Jennings

himself testified: "It was almost, not just incremental . . . I'm

telling the guy, look, you're going to break my ankle and so forth,

and he twisted it more." Similarly, Domingo Monroe, who was seated

across the room when the struggle occurred, testified: "Adam

Jennings said, you're hurting my ankle, it was already injured at

one point in time . . . and then the officer said, well . . . if

you wouldn't resist, then your ankle . . . wouldn't be hurting, and

then as he said that, he cranked down harder on the ankle."

Finally, Daniel Piccoli testified that he observed the struggle

through the open door of the smoke shop:

Q: Mr. Piccoli, could you describe the

movements, if any, of the person who was on

the floor?

A: There weren't any.

...

Q: Did there come a point in time when you

heard the person on the floor say something?

A: Yes.

Q: What did you hear him say?

A: He said something in regard to, "let go,

you're going to break my ankle."

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Q: And what, if anything, did the officer who

was holding onto his ankle do?

A: Just twisted more.

Jennings' attorney emphasized this increased use of force in his

closing argument:

Now, Adam Jennings himself has testified that

he was on the floor, he was saying to somebody

. . . you're breaking my ankle or I just had

surgery. And you heard testimony that the

immediate response was [] a greater

application of force than there already had

been, you heard that from Dan Piccoli.

Near the end of the closing argument, Jennings' attorney returned

to this theme:

[Jones] never increased his force, he said,

never decreased it. Now you tell me, if

you've got constant force on somebody's ankle

and their foot, why at some point does it

break? . . . [D]id Trooper Jones who had Adam

Jennings totally under control, lose it and

just decide that because this guy was still

complaining, that he was going to teach him a

little bit of a lesson and put a little bit

more pressure on.

As highlighted by the arguments of counsel,9 the

consistent testimony from Jennings and two eye-witnesses would

allow a reasonable jury to conclude that Jones increased the force

9

Our conclusion that a reasonable jury could have found that

Jones increased the force he used after Jennings had already ceased

resisting is based on the principle that we must view the evidence

in the light most favorable to the jury verdict. This conclusion

does not depend on the substance of the opening statements and

closing arguments. However, the opening statements and closing

arguments emphasize that this principle is consistent with the way

that the case was argued to the jury.

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he used to restrain Jennings after Jennings had already ceased

resisting. This version of events correctly construes the facts

"in the light most favorable to the verdict." Whitfield, 431 F.3d

at 8.

The district court failed to view the facts in this

light. In its written decision granting judgment as a matter of

law to Jones on the basis of qualified immunity, the district court

stated that the testimony of the police officers was more credible

than the contrary testimony of Jennings, Piccoli and Monroe.

Therefore, it did not believe that "Jones continued to twist

Jennings' ankle after Jennings had stopped resisting and was under

control." (Emphasis in original.) However, the district court

also correctly noted that it could not grant judgment as a matter

of law on that basis. See 9A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2524 (2d ed.

1995)(explaining that, in granting judgment as a matter of law, a

court "is not free to weigh the parties' evidence or to pass on the

credibility of witnesses or to substitute its judgment of the facts

for that of the jury.")(internal footnotes omitted). Instead, the

court granted judgment as a matter of law on the basis of qualified

immunity, finding that Jennings had not presented evidence from

which the jury could conclude that the force used to subdue

Jennings was excessive, and that, in any case, Jones was entitled

to qualified immunity because the relevant law was not clearly

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established and a reasonable officer would not have believed that

the force was excessive and thus in violation of the Fourth

Amendment.

We reserve discussion of the court's ultimate ground for

granting judgment as a matter of law for our qualified immunity

analysis in the next section of this opinion. Here, we wish only

to emphasize an important inconsistency in the district court's

analysis of the evidence. The court acknowledged that it could not

supplant the jury's view of the facts with its own. Assessing

credibility was the jury's role, and, as the court also

acknowledged, the evidence permitted a reasonable finding by the

jury that Jones increased the force he used after Jennings had

ceased resisting. Yet the district court's qualified immunity

analysis incorporated its skepticism about the jury's fact-finding

on the critical issue of whether Jones increased his use of force.

At one point, the court stated in its decision that "the jury

determined that Jones' use of the ankle turn control technique

amounted to excessive force." (Emphasis added.) Later, it

referred to Jones "maintaining" the ankle hold after Jennings

ceased resisting. Given the witness testimony discussed above, the

district court's characterization is incomplete. Jennings and his

two witnesses testified that Jones increased his force after

Jennings ceased resisting, and we adopt this view of the evidence

in accordance with the principle that we take facts in the light

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most favorable to the verdict.

The dissent intimates that the jury's fact-finding role

may be different in a case involving qualified immunity, noting our

prior statement that "the Supreme Court has not clearly indicated

whether the judge may act as fact-finder when there is a factual

dispute underlying the qualified immunity defense or whether this

function must be fulfilled by a jury." Kelley v. LaForce, 288 F.3d

1, 7 n.2 (1st Cir. 2002). The dissent also claims that, by taking

the facts in the light most favorable to the jury verdict, we

engage in "a bit of legal fiction." It argues that we have no way

of knowing what facts the jury found, and lists the various factual

scenarios that the jury might have found in a lengthy footnote.10

10

To buttress this criticism, the dissent relies on an

idiosyncratic and distinguishable case. In Iacurci v. Lummus Co.,

387 U.S. 86, 86-87 (1967), the jury was instructed that, if it

found that a "hoist" was negligently designed, it should indicate

which of five specified design aspects was found unsafe by

answering "yes" or "no" to five questions on a special

interrogatory form. The jury found negligent design, but answered

only one question in the affirmative, leaving the other four blank.

Id. at 87. From this lack of response, the appellate court

concluded that the jury would have answered the other four

questions in the negative. Id. The Supreme Court stated that it

did not "share the Court of Appeals' confidence as to the meaning"

of the jury verdict, explaining that "[p]erhaps the jury intended

to resolve these questions in respondent's favor; but the jury

might have been unable to agree on these issues, or it simply might

not have passed upon them because it concluded that respondent had

negligently designed the hoist in another respect." Id. at 87-88.

In Iacurci, the jury's lack of response to a set of specific

instructions made it impossible either to "take the facts in the

light most favorable to the verdict," Whitfield, 431 F.3d at 8, or

to extract the jury's "discernible resolution of disputed factual

issues," Iacobucci, 193 F.3d at 23. Such circumstances are not

present here, where the jury issued a general verdict in favor of

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Finally, it suggests that the jury may have reached a compromise

verdict.11

The dissent's speculations ignore the fundamental

principle that, in civil actions, our federal judicial system

"distributes trial functions between judge and jury and, under the

influence - if not the command - of the Seventh Amendment, assigns

the decisions of disputed questions of fact to the jury."

Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 432

(1996)(citation omitted). Indeed, we acknowledged this principle

in Kelley by stating that “when facts are in dispute, ‘we doubt the

Supreme Court intended this dispute to be resolved from the bench

by fiat.’” Kelley, 288 F.3d at 7 n.2 (quoting Prokey v. Watkins,

942 F.2d 67, 72 (1st Cir 1991)). Consistent with this principle,

other courts have taken the facts in the light most favorable to

the jury verdict in reviewing a district court's grant of judgment

as a matter of law in cases involving qualified immunity. See,

e.g., Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 503 (9th

Cir 2004)("Many facts were hotly disputed at trial. We state them

here consistent with the verdict.”); Tamez v. City of San Marcos,

118 F.3d 1085, 1091 (5th Cir. 1997)(“[W]e consider all of the

Jennings and we are bound, by numerous precedents, to take the

facts in the light most favorable to that verdict.

11

The jury found for defendants on five other claims,

indicating that it carried out its responsibilities carefully. Any

judgment beyond that is pure speculation.

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evidence in the light most favorable to the nonmoving party.");

Henderson v. DeRobertis, 940 F.2d 1055, 1057 (7th Cir. 1991)(“We

must view all the evidence and inferences in the light most

favorable to [plaintiffs], who prevailed with the jury; any

conflicts in the evidence must be resolved in favor of those

[plaintiffs] and every permissible inference must be drawn in their

favor.”).

In this case, the only view of the evidence consistent

with the principle that we take the facts in the light most

favorable to the jury verdict is that Jones increased the force he

used to restrain Jennings after Jennings had ceased to resist and

after Jennings had announced his prior ankle injury. That

increased use of force broke Jennings' ankle. Our acceptance of

these facts is no legal fiction. It is an acknowledgment of the

deference that we must give to juries in the performance of their

fact-finding role.

With this controlling legal principle in mind, and the

view of the evidence required by that principle, we turn to the

legal question of Jones' entitlement to qualified immunity. Our

review is de novo. Whitfield, 431 F.3d at 6.

III.

The Supreme Court explained the process for determining

qualified immunity in Saucier v. Katz, 533 U.S. 194 (2001).

Saucier held that a court first must determine whether "the facts

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alleged show the officer's conduct violated a constitutional

right." Id. at 201. Second, the court must determine whether the

right was "clearly established" so that "it would be clear to a

reasonable officer that his conduct was unlawful in the situation

he confronted." Id. at 201-02. The Supreme Court emphasized that

the constitutional question must be decided before determining

whether the right was clearly established to facilitate the

elaboration of the law. See id. at 201.

We have typically applied Saucier using a three-part test

in which we inquire:

(1) whether the claimant has alleged the

deprivation of an actual constitutional right;

(2) whether the right was clearly established

at the time of the alleged action or inaction;

and (3) if both of these questions are

answered in the affirmative, whether an

objectively reasonable official would have

believed that the action taken violated that

clearly established constitutional right.

Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 141 (1st Cir. 2001);

see also Wilson v. City of Boston, 421 F.3d 45, 52 (1st Cir. 2005).

Although this inquiry subdivides the second prong of the Saucier

analysis into two separate questions, it is functionally identical

to that analysis. Thus, we turn to this three-pronged inquiry,

mindful of our obligation to evaluate any disputed evidence in the

light most favorable to the jury verdict. Specifically, as we have

already explained, we must take the view that Jones increased the

pressure on Jennings' ankle after Jennings stopped resisting the

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officers and stated that the force used was hurting his previously

injured ankle.

A. Prong One: The Constitutional Violation

In granting Jones' motion for judgment as a matter of

law, the district court indicated that Jennings had not presented

sufficient evidence for a reasonable jury to find that Jones had

used excessive force in violation of the Constitution.12 To explore

this question, we must first examine what constitutes excessive

force under the Fourth Amendment, and then determine whether the

evidence presented here was sufficient to support the jury verdict.

To establish a Fourth Amendment violation based on

excessive force, a plaintiff must show that the defendant officer

employed force that was unreasonable under the circumstances. See

Graham v. Connor, 490 U.S. 386, 397 (1989). Whether the force used

to effect a particular seizure is reasonable "must be judged from

the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight." Id. at 396. The

reasonableness inquiry is objective, to be determined "in light of

12

Appropriately, the jury was not asked to address the

qualified immunity issue. Nevertheless, in delivering the general

verdict on Jennings' claim of excessive force under the Fourth

Amendment, the jury essentially was addressing the first prong of

the qualified immunity inquiry. Because we now address the

question of qualified immunity after this jury verdict for the

plaintiff, our task on the first prong of the qualified immunity

analysis is to “inquire whether the evidence at trial, viewed in

the light most favorable to the verdict, is legally sufficient to

support the jury’s verdict that the plaintiff was deprived of a

constitutional right.” Wilson, 421 F.3d at 54.

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the facts and circumstances confronting [the officers], without

regard to their underlying intent or motivation." Id. at 397.

There must be "careful attention to the facts and circumstances of

each particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight." Id. at 396.

We recognize the difficult situation confronting the

police. It is undisputed that Jennings was challenging authority

and resisting arrest. For much of the struggle, the police could

not see Jennings' hands, and they reasonably could have believed

that he might have a weapon. In making an arrest, a police officer

has "the right to use some degree of physical coercion or threat

thereof to effect it." Id. The fact that Jennings' ankle was

broken does not, in itself, prove a constitutional violation:

"[T]he use of force is an expected, necessary part of a law

enforcement officer's task of subduing and securing individuals

suspected of committing crimes." Lee v. Ferraro, 284 F.3d 1188,

1200 (11th Cir. 2002).

However, the focus of Jennings' excessive force claim was

not merely Jones' use of force, but rather Jones' increased use of

physical force after Jennings had ceased resisting for several

seconds and stated that the force Jones was using was hurting his

previously injured ankle. Jennings used one of Jones' own

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witnesses to help establish that such force was unreasonable.

Defendants initially called Officer Delaney, an instructor at the

Rhode Island State Police Training Academy, to provide testimony

about the training of officers and the use of various restraint

techniques. During Jennings' cross-examination the parties agreed

to treat Delaney as an expert witness.13 Delaney testified that

the ankle turn control technique is taught to police officers as "a

compliance technique and a restraint technique devised to control

somebody from kicking." These techniques are taught in conjunction

with the "Use of Force Continuum," a chart explaining that the

degree of force that an officer uses should correlate with the

degree of resistance offered by the arrestee. On cross-

examination, Delaney testified that it was appropriate for an

officer to continue to apply the ankle turn control technique after

a suspect stops kicking:

Q: [If] Adam Jennings is not kicking and his

hands have been put behind his back and

13

During the government's direct examination of Delaney,

Jennings' attorney objected to certain questions because Delaney

had not been qualified as an expert. The record does not disclose

why the government had not qualified Delaney as an expert, but the

court sustained Jennings' objections on these grounds. However, on

cross-examination Jennings' attorney also attempted to ask Delaney

questions that would ordinarily require expert qualifications.

When the government objected, Jennings' attorney indicated that he

now wanted Delaney to be qualified as an expert. The court stated

that if Jennings wanted to use Delaney as an expert, the government

would also have the opportunity, on redirect, to ask the questions

requiring expert qualifications to which Jennings had originally

objected. The parties agreed to this arrangement, and the court

subsequently allowed both parties to use Delaney as an expert.

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officers are attempting to put the flex cuffs

on him . . . would it be appropriate for an

officer in the position of Trooper Jones to

still be twisting his ankle?

A: It would be appropriate for him to maintain

that control over the leg.

(Emphasis added.)

However, Delaney's testimony about the continuum of force

also supports the view that it would be unreasonable for an officer

to increase his use of force when an arrestee has ceased to resist.

Delaney testified during cross-examination that the continuum of

force was a "two way street," meaning that, if the level of

resistance changes, the level of force should be adjusted upward or

downward correspondingly:

Q: [E]ven if an officer feels at one point in

time that one level of force is appropriate,

he is supposed to adjust the amount of force

he uses in response to a lessening of the

arrestee; isn't that true?

A: Yes. That would be the Trooper's own

assessment of where that lies, yes, sir.

Still on cross-examination, Delaney testified further:

Q: You don't get stuck at any level, an

officer has to be cognizant of what's going on

during the arrest and adjust his use of force

accordingly, right?

A: Correct.

The district court's jury instructions noted that a factor in

determining excessive force is whether "the degree of force used

and also whether the degree of force was proportional to what was

-22-

appropriate under the circumstances." Moreover, Jennings' closing

argument specifically connected the content of Delaney's testimony

to Jones' increased use of force:

Now, the Judge is going to instruct you that,

as does the Use of Force Continuum . . . what

goes up can come down and should come down if

there's no need any longer to be applying that

kind of force. Now, Adam Jennings himself has

testified that he was on the floor, he was

saying to somebody . . . you're breaking my

ankle or I just had surgery. And you heard

testimony that the immediate response was [] a

greater application of force than there

already had been . . . .

Thus, guided by the court's instructions on proportional force, the

jury could conclude from Delaney's testimony that it would have

been unreasonable for an officer to increase the pressure on

Jennings' ankle several seconds after Jennings stopped resisting

arrest and, moreover, stated that the pressure already applied was

hurting his previously injured ankle.

The district court considered Delaney's testimony. It

noted that "Delaney did acknowledge that the continuum of force was

a 'two-way street,' meaning that, if the level of resistance

changes, the level of force used should be adjusted upward or

downward to correspond to what is appropriate at the level of

resistance." Critically, though, the court failed to relate

Delaney's testimony to the view of the evidence that we must take

in light of the jury verdict. It explained that "Delaney testified

that it would have been appropriate for Jones to maintain the ankle

-23-

turn control technique even if Jennings was not kicking and the

officers were 'just trying to get the flex cuffs on him.'"

(Emphasis added.) However, Jones did not simply maintain the ankle

turn control technique after Jennings gave up resistance; rather,

he increased pressure to the point that he broke Jennings' ankle.

In finding that a reasonable jury could not have

concluded that Jones used excessive force, the district court

relied on our decision in Isom v. Town of Warren, 360 F.3d 7 (1st

Cir. 2004). In that case, the police used pepper spray on Robert

Isom, a "distraught, seemingly suicidal man, who had briefly held

two hostages and was refusing to comply with continuous officer

requests that he put down an axe." Id. at 11. After the spray

stopped, Isom “responded not by dropping to the ground, as the

officer had hoped, but by raising the axe and running toward two

officers.” Id. at 8. The officers then shot and killed Isom. Id.

At trial, the representative of Isom's estate argued that

the use of pepper spray in that situation was “a colossal

misjudgment, resulting in a needless and wrongful death,” and that

no reasonable officer would have used pepper spray under such

circumstances. Id. However, we found this argument inadequately

supported because “[i]n the presence of such danger, the plaintiffs

could not prevail at trial without providing evidence that would

bring into question the officers' judgment call to use pepper

spray." Id. at 11. Because the plaintiff did not present any such

-24-

evidence, we found that "[t]here was no evidence from which the

jury could rationally draw the conclusion that the officers'

actions were objectively unreasonable." Id. at 12.

The district court held that this case is "markedly

similar to Isom," quoting Isom's explanation for finding that the

plaintiff had not presented sufficient evidence:

No expert testified that, under the

circumstances faced by Detective Clancy, no

reasonable officer would have used pepper

spray; in fact, the plaintiffs did not produce

any expert testimony at all. Nor did the

plaintiff produce any written policy or text

stating that the use of pepper spray in

circumstances such as those faced by Clancy

was not reasonable.

Id. The district court also emphasized Isom's holding that, "[f]or

the jurors to have been given an opportunity to exercise their

common sense on the ultimate question of whether no objectively

reasonable officer would have used pepper spray, there must have

been some basis in the evidence on which to ground that

determination." Id. Relying on these propositions from Isom, the

district court found that

there was an absence of any evidence that 'no

objectively reasonable officer' would have

used the level of force used by Jones and,

therefore, the jury unfairly was put in the

untenable position of trying to decide that

question without sufficient evidence of the

applicable standard for measuring the

lawfulness of Jones' conduct.

As a result, the district court concluded that in this case, as in

Isom, there was no basis in the evidence to support a jury finding

-25-

of excessive force.14

Contrary to the district court's assessment, this case

differs from Isom in two important respects. First, in contrast to

the plaintiff in Isom, Jennings did provide expert testimony about

the use of force. He directed the jury to the testimony of Officer

Delaney on the Use of Force Continuum, a concept relevant to the

court's own instructions about the proportionality of force under

the circumstances. As described above, Jennings’ closing argument

emphasized that “the Judge is going to instruct you that, as does

the Use of Force Continuum, like I said, what goes up can come down

and should come down if there's no need any longer to be applying

that kind of force.” Thus, unlike the plaintiff in Isom, Jennings

explicitly directed the jury to expert testimony in the record that

could assist the jury in determining that no reasonable officer

under the circumstances Jones confronted would have applied more

pressure to Jennings’ ankle.

We acknowledge that the expert testimony in this case was

not precisely the sort described in Isom. As the district court

noted, "[n]o expert testified that, under the circumstances faced

14

The dissent claims that we do a "disservice" to the district

court by stating that the district court would have reached a

different conclusion from the jury on the excessive force issue.

However, the district court explicitly included in its qualified

immunity analysis the conclusion that "Jennings failed to present

any evidence that Jones' actions deviated from the standard of

conduct that should have been expected from an objectively

reasonable police officer under the circumstances.” This statement

is equivalent to a holding that there was no excessive force.

-26-

by [Jones], no reasonable officer would have" acted as Jones did.

Isom, 360 F.3d at 12. In fact, Delaney testified to the contrary

on redirect examination by the government:

Q. Did Officer Ken Jones use force that you

would consider reasonable under the

circumstances?

A. Yes.

However, Officer Delaney's testimony in response to the next few

questions makes clear that he did not make his assessment with the

relevant factual circumstances in mind. When asked what factors

informed his finding of reasonableness, Delaney explained:

The fact that, you know, the suspect did not

comply with the order of arrest, that he was

assaultive, he was trying to kick the Trooper

and he was offering enhanced defiance by

bringing his arms in, at that point the

appropriate application of force, which was

the technique employed by Trooper Jones.

(Emphasis added.) The factors Delaney lists all occurred prior to

the time that Jennings ceased to resist, and Delaney’s testimony

thus indicates only that the use of force was reasonable "at that

point" in time. Given that, viewing the evidence in the light most

favorable to the verdict, Jones increased the force he used after

Jennings ceased resisting, Delaney's expert testimony about the Use

of Force Continuum actually supports a finding that the force Jones

used was excessive.

Second, although this case happened to include expert

testimony by Officer Delaney, we do not read Isom to require such

-27-

testimony to support a finding that an officer’s use of force was

unreasonable.15 Isom requires only that “there must have been some

basis in the evidence on which to ground” a finding of excessive

force, leaving open the possibility that some cases may be

susceptible to a common sense determination by the jury. Isom

itself involved pepper spray, a substance whose use may be

unfamiliar to many jurors, and consequently the question of whether

it is reasonable to use pepper spray in an attempt to subdue a

distraught but threatening suspect may have been best addressed

through expert testimony. By contrast, this case involves the

common sense proposition that it is not reasonable for police

officers to increase their use of physical force after an arrestee

who has been resisting arrest stops resisting for several seconds

and warns the officers that they are hurting his previously injured

ankle. Although Officer Delaney did not offer expert testimony

that no reasonable officer would have acted as Jones did under the

circumstances, he did offer expert testimony that gave the jury a

useful framework for thinking about the excessive force issue.

Thus informed, the jurors were in a better position to apply their

15

Jennings argues that the district court erred in requiring

expert testimony to prove excessive force. However, the district

court did not actually impose this requirement. Instead, it noted

that the jury had to have "sufficient evidence of the applicable

standard for measuring the lawfulness of Jones' conduct." We read

this as a requirement that Jennings produce some evidence, whether

in the form of expert testimony, lay testimony, or other evidence,

from which the jury could evaluate the reasonableness of Jones'

conduct.

-28-

common sense to the facts of this case.16

Other courts have recognized that some factual scenarios

permit common sense determinations by the jury as to whether the

police used excessive force. In Kopf v. Skyrm, 993 F.2d 374, 379

(4th Cir. 1993), the Fourth Circuit noted:

[A] blanket rule that expert testimony is

generally admissible in excessive force cases

would be just as wrong as a blanket rule that

it is not.

The facts of every case will determine

whether expert testimony would assist the

jury. Where force is reduced to its most

primitive form - the bare hands - expert

testimony might not be helpful.

See also Adewale v. Whalen, 21 F.Supp.2d 1006, 1014 (D.Minn. 1998)

(“If plaintiff's version of the facts is believed, the jury could

conclude without expert testimony that [defendant] used excessive

force, and that his actions caused plaintiff's broken arm.”). This

case, involving force applied with bare hands, did not require

expert testimony to establish whether the force used was

reasonable.

In keeping with our decision in Isom, a reasonable jury

could have exercised its common sense, informed by Officer

Delaney's expert testimony, to find that Jones used excessive force

by increasing pressure on Jennings’ ankle after Jennings stopped

16

We are not suggesting that Officer Delaney's expert

testimony was or was not essential to the submission of the

excessive force issue to the jury. We are simply explaining how

that testimony might have been useful to the jury in this case.

-29-

resisting for several seconds and stated that Jones was using force

that hurt his previously injured ankle. Consequently, we conclude

that Jones violated Jennings' Fourth Amendment right to be free

from an unreasonable seizure.

B. Prong Two: Whether the Law Was Clearly Established

The second prong of the qualified immunity analysis asks

"whether the constitutional right . . . was 'clearly established'

at the time of the incident such that it would 'be clear to a

reasonable officer that his conduct was unlawful in the situation

he confronted.'" Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 65

(1st Cir. 2004) (quoting Saucier, 533 U.S. at 202). We consider

whether existing case law gave the defendants "fair warning that

their conduct violated the plaintiff's constitutional rights."

Suboh v. Dist. Attorney's Office of Suffolk, 298 F.3d 81, 93 (1st

Cir. 2002). In other words, the law is clearly established either

if courts have previously ruled that materially similar conduct was

unconstitutional, or if "a general constitutional rule already

identified in the decisional law [applies] with obvious clarity to

the specific conduct" at issue. United States v. Lanier, 520 U.S.

259, 271 (1997). We therefore consider whether materially similar

cases or general Fourth Amendment principles gave Jones fair

warning that it was unconstitutional for police officers to

increase their use of physical force after an arrestee who has been

resisting arrest stops resisting for several seconds and warns them

-30-

that they are hurting his previously injured ankle.

We conclude that Jones had such notice. In Smith v.

Mattox, 127 F.3d 1416 (11th Cir. 1997), the Eleventh Circuit denied

qualified immunity to a police officer accused of breaking the

plaintiff's arm while putting on handcuffs.17 According to the

plaintiff, he was at his mother's house when a uniformed police

officer, acting on a tip from an informant, entered the yard. The

plaintiff then "raised [a] baseball bat in a threatening posture"

and ignored the officer's order to drop it. Id. at 1418. When the

officer threatened to shoot, the plaintiff fled. He soon

encountered the police officer again, and then plaintiff "docilely

submitted to arrest upon [the officer's] request for him to 'get

down.'" Id. In the process of putting on handcuffs, the officer

bent the plaintiff's arm in a way that caused discomfort. Id.

When the plaintiff complained, the police officer, "with a grunt

and a blow - but no sign of anger," broke his arm so severely that

it required surgery for multiple fractures. Id. The court

concluded that such use of force would be excessive and that the

officer was not entitled to qualified immunity. Id.

Although Smith helps to demonstrate that the law

17

Since the court's ruling was made in the context of summary

judgment, it took the facts in the light most favorable to the

plaintiff. 127 F.3d at 1417. The point seemingly made by the

dissent about this case (that a jury might not ultimately find

those facts) does not undermine the value of the case as indicative

of clearly established law.

-31-

protecting Jennings from Jones' increased use of force was clearly

established, our conclusion does not depend on this strikingly

similar case. Instead, Smith emphasizes the obvious

unconstitutionality of increasing the force used on an arrestee to

such a degree that a broken ankle results, after the arrestee has

ceased resisting for several seconds and stated that the force

already used is hurting his previously injured ankle. The Supreme

Court has explained that

general statements of the law are not

inherently incapable of giving fair and clear

warning, and in other instances a general

constitutional rule already identified in the

decisional law may apply with obvious clarity

to the specific conduct in question, even

though 'the very action in question has [not]

previously been held unlawful.'

Lanier, 520 U.S. at 271 (1997)(citation omitted). Accordingly, we

conclude that Jones' conduct was such an obvious violation of the

Fourth Amendment's general prohibition on unreasonable force that

a reasonable officer would not have required prior case law on

point to be on notice that his conduct was unlawful. Indeed, even

in Smith, which was decided six years before the incident at issue

here, the court concluded that the law was clearly established

against the use of increased force on a suspect no longer offering

resistance because "the unlawfulness of the conduct is readily

apparent even without clarifying caselaw." 127 F.3d at 1420.18

18

The dissent misconstrues the Supreme Court's precedents

relating to qualified immunity when it states that "[t]he very

-32-

Other circuits have rejected qualified immunity without

a prior case exactly on point. In Rice v. Burks, 999 F.2d 1172

(7th Cir. 1993), the Seventh Circuit noted that a plaintiff can

defeat a qualified immunity defense

without identifying a closely analogous case

if he show[s] that the force used was so

plainly excessive that the police officers

should have been on notice that they were

violating the Fourth Amendment. Indeed,

police officers should not be shielded from

liability just because their excessive use of

force happens to be original.

Id. at 1174 (internal citations omitted). Similarly, other courts

have found that case law is not required where the constitutional

violation is obvious. See, e.g., Gray ex rel. Alexander v. Bostic,

458 F.3d 1295, 1306 (11th Cir. 2006)(rejecting qualified immunity

for handcuffing compliant nine-year-old girl because "[e]ven in the

absence of factually similar case law, an official can have fair

warning that his conduct is unconstitutional when the

constitutional violation is obvious"); Smith, 127 F.3d at 1419

(stating that law is clearly established when "the official's

fact-intensive nature of the test for excessive force itself

requires particularized prior case law." It is true that the

"right allegedly violated must be defined at the appropriate level

of specificity before a court can determine if it is clearly

established," Wilson v. Layne, 526 U.S. 603, 615 (1999)(emphasis

added), but this requirement does not imply that the relevant case

law must be particularized to address the alleged violation.

Rather, once the right allegedly violated has been defined, the

court must examine whether "the unlawfulness of particular conduct

will be apparent ex ante to reasonable public officials." See

Brady v. Dill, 187 F.3d 104 (1st Cir. 1999)(citing Wilson, 526 F.3d

at 613).

-33-

conduct lies so obviously at the very core of what the Fourth

Amendment prohibits that the unlawfulness of the conduct was

readily apparent to the official, notwithstanding the lack of case

law"); Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993)

(stating that plaintiffs may show that the violation was clearly

established using "either a closely analogous case or evidence that

the defendants' conduct is so patently violative of the

constitutional right that reasonable officials would know without

guidance from the courts").

Although the dissent professes to accept, arguendo, that

Jones increased the force he used to restrain Jennings after

Jennings had ceased resisting for several seconds, it continues to

describe a different version of events with the cases it cites to

show that the law was not clearly established. Some of these cases

involve the use, rather than the increase, of force.19 Others are

inapplicable because the arrestee was still resistant.20

Critically, these cases do not address the key conduct at issue

here: the increased use of force on a previously resisting but now

19

Rodriguez v. Farrell, 294 F.3d 1276, 1278-79 (11th Cir.

2002); Jackson v. City of Bremerton, 268 F.3d 646, 650-53 (9th Cir.

2001); Eberle v. City of Anaheim, 901 F.2d 814, 820 (9th Cir.

1990).

20

Huang v. Harris County, No. 00-20806, 2001 WL 822534 (5th

Cir. June 22, 2001)(unpublished disposition); Brownell v. Figel,

950 F.2d 1285, 1288, 1293 (7th Cir. 1991).

-34-

non-resisting arrestee.21 The dissent's reliance on such cases

demonstrates its refusal to acknowledge that Jones' increased use

of force was integral to Jennings' excessive force claim and that,

consistent with our obligation to take the facts in the light most

favorable to the jury verdict, we must accept this version of the

facts in evaluating qualified immunity.

When an individual has been forcibly restrained by

several officers, has ceased resisting arrest for several seconds,

and has advised the officers that the force they are already using

is hurting a previously injured ankle, we cannot think of any basis

for increasing the force used to such a degree that a broken ankle

results. At the time of Jones' action, both existing caselaw and

general Fourth Amendment principles had clearly established that

this use of force was excessive in violation of the Constitution.

D. Prong Three: Whether a Reasonable Officer Would Have

Believed a Violation Occurred

The final prong of the qualified immunity analysis is

"whether an objectively reasonable official would have believed

that the action taken violated that clearly established

constitutional right." Starlight, 253 F.3d at 141. As we have

previously explained, “[i]t is not always evident at the time an

official takes an action that a clearly established right is

21

Indeed, the dissent's insistence on "particularized prior

cases with similar facts," see supra note 18, is inconsistent with

its use of these cases, which, for the reasons already stated,

differ significantly from the circumstances present here.

-35-

involved. For example, the factual situation might be ambiguous or

the application of the legal standard to the precise facts at issue

might be difficult.” Riverdale Mills, 392 F.3d at 61. Thus, even

if an officer's conduct violated clearly established Fourth

Amendment law, he may still be eligible for qualified immunity if

he was reasonably mistaken as to the degree of force he should have

used.

At first glance, this inquiry appears indistinguishable

from that in the first prong. Both involve the reasonableness of

the officer's conduct. However, the key distinction is that prong

one deals with whether the officer's conduct was objectively

unreasonable, whereas prong three deals with whether an objectively

reasonable officer would have believed the conduct was

unreasonable. See Saucier, 533 U.S. at 204-05 (explaining that

"claims of excessive force in the context of arrests . . . should

be analyzed under the Fourth Amendment's 'objective reasonableness

standard'" but that "[i]f the officer's mistake as to what the law

requires is reasonable . . . the officer is entitled to the

immunity defense" (internal citation omitted)).

The third prong analysis seems nonsensical at first blush

because, in effect, officers receive protection if they acted

reasonably in exercising unreasonable force. In Anderson v.

Creighton, 483 U.S. 635, 643 (1987), the Supreme Court acknowledged

the argument made by the appellant in that case that “[i]t is not

-36-

possible . . . to say that one ‘reasonably’ acted unreasonably.”

However, the Court excused this apparent contradiction as merely

linguistic, explaining:

We have frequently observed, and our many

cases on the point amply demonstrate, the

difficulty of determining whether particular

searches or seizures comport with the Fourth

Amendment. Law enforcement officers whose

judgments in making these difficult

determinations are objectively legally

reasonable should no more be held personally

liable in damages than should officials making

analogous determinations in other areas of

law.

Id. at 644 (internal citation omitted). Thus, qualified immunity

affords protection to officers who reasonably, yet mistakenly,

employ excessive force in violation of the Fourth Amendment.

Again, we are sympathetic to the situation that Jones

confronted. Jennings had to be subdued while he was resisting

arrest, and the chaos caused by his struggle may have made it

difficult for Jones to gauge the appropriate level of force. These

circumstances would arguably allow a reasonable officer in Jones’

circumstances to believe that it was lawful to maintain the level

of force he used even after Jones ceased resisting.

However, we reiterate that we must take the facts in the

light most favorable to the jury verdict. See, e.g., Iacobucci v.

Boulter, 193 F.3d 14, 23 (1st Cir. 1999). Thus, we accept that

-37-

Jones increased, rather than merely maintained, the force he

applied to Jennings' ankle, even after Jennings had ceased

resisting and stated that Jones was hurting his previously injured

ankle.22

Under such circumstances, even the "added measure of

protection" provided by the third prong of the qualified immunity

analysis does not insulate Jones from damages. Cox v. Haney, 391

F.3d 25 (1st Cir. 2004). We find that an objectively reasonable

officer in Jones' circumstances would not have believed that it was

lawful to increase the amount of force that he used after Jennings

ceased resisting and stated that Jones was hurting him.23

Because the first and third prongs of the qualified

immunity analysis are so closely related in these Fourth Amendment

22

See supra Section II for a description of the evidence on

this point.

23

The dissent argues that Jones’ use of force was justified

because Jennings was not totally secured at the time his ankle was

broken and the officers were having a difficult time getting the

flex cuffs on Jennings. The more important point, however, is that

Jennings had ceased resisting before Officer Hill got up and walked

away, and, as shown on the video, several seconds elapsed between

the time that Officer Hill left and the time that Jennings yelled

in pain as his ankle was broken. Thus, any difficulty or delay

that the officers experienced in handcuffing Jennings was not due

to resistance on Jennings’ part, and does not alter our conclusion

that an objectively reasonable officer in Jones’ circumstances

would not have believed that it was lawful to increase force after

Jennings ceased resisting and stated that the restraint was hurting

his previously injured ankle. Relatedly, the dissent's statement

that "Hill got out of the way because other officers were having

trouble cuffing Jennings" incorrectly suggests that Jennings was

still resisting when Hill got up and walked away.

-38-

excessive force cases, the evidence that supports our conclusion on

the first prong, that a reasonable jury could have found that the

force Jones used was unreasonable, is likewise relevant here, on

the third prong, to demonstrate that an objectively reasonable

officer in Jones' position would have believed that the force used

was unreasonable. More specifically, Officer Delaney's testimony

about the training that officers receive and the Use of Force

Continuum is relevant both to the prong one question of whether

there was a violation at all and to the prong three question, which

we address here, of whether a reasonable officer in Jones'

circumstances would have believed that his conduct violated the

Constitution.

Officer Delaney's testimony about the training that

officers undergo and the Use of Force Continuum made clear that

officers should adjust their force in a manner proportional to the

resistance offered by the arrestee. Instead, Jones adjusted his

force inversely, increasing the force he used after Jennings

stopped resisting and stated that the restraint was causing him

pain. Under such circumstances, a reasonable officer would have

believed that increasing his use of force would violate Jennings'

constitutional right to be free from excessive force.24

24

In our discussion of prong one, we were careful to point out

that we were not suggesting that Delaney's testimony was or was not

essential to the jury's determination that the force used by Jones

was excessive. We simply explained how that testimony could have

been helpful to the jury in reaching its excessive force verdict.

-39-

The district court concluded that Jones was entitled to

qualified immunity because a reasonable officer in his position

would not have believed that his conduct violated Jennings'

constitutional rights. However, this conclusion again indicates

that the court did not construe the facts in the light most

favorable to the jury verdict. In discussing the third prong of

the qualified immunity analysis, the court stated that "the

evidence clearly demonstrates that, even if he was mistaken, Jones

reasonably could have believed that his utilization of the ankle

turn control technique was lawful." (Emphasis added.) As we have

repeatedly emphasized, the conduct at issue was not the mere

utilization of the technique, but rather the increase of force

after Jennings ceased resisting. It is this increased force that

an objectively reasonable officer would not have believed was

lawful.

The dissent once again avoids the central issue - Jones'

use of increased force on a nonresisting arrestee - by describing

Jones' conduct and Delaney's testimony in sanitized terms. It

states that "Jones testified that he tried to secure Jennings'

ankle," emphasizes Delaney's testimony that "it was appropriate for

We make a similar point here. The Delaney testimony is certainly

relevant to the prong three determination that was to be made by

the court: whether a reasonable official would have believed that

the force being used was excessive. However, we are not suggesting

that this testimony was or was not essential to that legal

determination.

-40-

Jones to continue using the same compliance technique," and refers

repeatedly to the "use" of the ankle turn control technique.

(Emphases added.) These characterizations ignore the view of the

facts we must take in light of the jury verdict and, consequently,

result in a misapplication of the qualified immunity analysis.

In light of the circumstances, we hold that a reasonable

officer in Jones' position would have believed that increasing the

force with which he restrained Jennings was a violation of

Jennings' constitutional right to be free from excessive force.

Thus, Jones is not entitled to qualified immunity.

IV.

We conclude that the district court erred in granting

judgment as a matter of law to appellee Jones based on qualified

immunity. Jones' use of increased force after Jennings ceased

resisting violated the Fourth Amendment, the law was clearly

established, and a reasonable officer in Jones' circumstances would

have believed that his conduct was a violation. Therefore, we

vacate the district court's decision on that motion and reinstate

the jury verdict.

At the close of trial, in addition to his motion for

judgment as a matter of law, Jones filed alternative motions for a

new trial and a remittitur. After granting his motion for judgment

as a matter of law, the district court held that the alternative

motions were moot. This holding was error. Federal Rule of Civil

-41-

Procedure 50(c)(1) requires the district court to rule

conditionally on such motions in the event that the grant of

judgment as a matter of law is overruled on appeal.

We now remand to the district court for a ruling on the

undecided motions. However, since we already have vacated the

district court's ruling on Jones' motion for judgment as a matter

of law, its ruling on the other motions will not be conditional.

Instead, it will control the future course of proceedings. We do

not retain jurisdiction over the case.

So ordered.

- Dissenting Opinion Follows -

-42-

LYNCH, Circuit Judge, dissenting. With respect, I

dissent.

The majority opinion holds that a trial court, to whom

the ultimate decision on qualified immunity is granted, erred in

granting qualified immunity; it committed error, the majority says,

because a jury found by a general verdict that Officer Jones had

used excessive force.

I. Relevant History

It is worth explaining how this situation, which arose

from a mistake by the trial judge (which the judge later

acknowledged), came to pass.

The plaintiffs were permitted to amend their complaint

shortly before the deadline for filing pretrial motions to give

names to the John Doe state trooper defendants, including Officer

Jones, and bring suit against them in their individual capacities.

By the time of the pre-trial conference, the district court had

apparently indicated a disinclination to resolve the matters of

defense by summary judgment, noting that light would be shed on the

facts at trial.

At the close of the plaintiff's evidence at trial, the

officers moved for a ruling on their defenses, including the

qualified immunity defense under Rule 50. The district court

granted JMOL to defendants on a number of claims but, apparently

-43-

overlooking the immunity issue, said the remaining claims stated an

issue for the jury. At the close of all the evidence, but before

the verdict, the remaining defendants renewed their motion for

JMOL. The court granted judgment to all but three defendants,

including Jones. After the verdict, the court ruled that it had

erred in not granting the Rule 50 JMOL motion with respect to the

§ 1983 excessive force claim and the state law battery claim

against Jones. Jennings v. Pare, No. 03-572-T, 2005 WL 2043945, at

*5 (D.R.I. Aug. 24, 2005).

The jury returned a verdict against Jones on the

excessive force claim under the Fourth Amendment and awarded

damages of $301,100. The jury verdict simply stated, "As to the

claims by Adam Jennings against Kenneth Jones, Fourth Amendment

claim for excessive force, the jury finds for the plaintiff, Adam

Jennings." There were no special interrogatories which the jury

answered to make specific findings of fact.

After the jury verdict, Jones filed three motions: for

remittitur under Rule 59(e); for JMOL under Rule 50(b); and for a

new trial under Rule 59. The trial court allowed Jones' motion for

JMOL and decided that the other two motions were, accordingly,

moot. Id. at *1. Judgment was entered for Jones simultaneously

with the court's ruling on the three motions. In light of the

requirements of Rule 50(c)(1), the court erred in holding the new

-44-

trial motion was moot; it should have ruled on the merits of the

new trial motion.

In granting JMOL, the court held that despite the jury

verdict Officer Jones was nonetheless entitled to immunity. Id.

The district court found that, accepting that the force used was

unreasonable and excessive, the officer was entitled to immunity

under the second and third prongs of the analysis because (1)

clearly established law did not fairly warn the officer his actions

were unconstitutional, and (2) even if the law was clearly

established so as to give the officer fair notice that his actions

were unconstitutional, the court still concluded that "Jones

reasonably could have believed that his utilization of the ankle

turn control technique was lawful." Id. at *10-11.

II. Qualified Immunity

Appellate review of the immunity conclusion is de novo.

Whalen v. Mass. Trial Court, 397 F.3d 19, 23 (1st Cir. 2005).

Two particular rules apply in this situation. Under

Hunter v. Bryant, 502 U.S. 224 (1991), the question of immunity is

an issue for the trial court, not the jury, to determine. Id. at

228. The Supreme Court has not yet addressed the question of what

role jury findings play in the judicial immunity determination, nor

has this circuit. See, e.g., Kelley v. LaForce, 288 F.3d 1, 7 n.2

(1st Cir. 2002) ("[T]he Supreme Court has not clearly indicated

whether the judge may act as fact-finder when there is a factual

-45-

dispute underlying the qualified immunity defense or whether this

function must be fulfilled by a jury."); Ringuette v. City of Fall

River, 146 F.3d 1, 6 (1st Cir. 1998) ("Something of a 'black hole'

exists in the law as to how to resolve factual disputes pertaining

to qualified immunity when they cannot be resolved on summary

judgment prior to trial."). No clear answer has emerged from the

circuits. Gasperini v. Center for Humanities, Inc., 518 U.S. 415

(1996), cited by the majority, is not an immunity case and does not

resolve this question, which we have recognized as being open in

the years since Gasperini was decided.

Secondly, the merits inquiry about whether an officer

used excessive force does not resolve the immunity inquiry.

Saucier v. Katz, 533 U.S. 194, 204-06 (2001). A holding on the

merits is not dispositive of the issue of qualified immunity.

Cookish v. Powell, 945 F.2d 441, 443 (1st Cir. 1991). Thus,

whatever deference is owed to the jury findings on prong one of

immunity, the court was free to grant immunity, as it did, on

prongs two and three. The officer here could both have applied

excessive force and, at the same time, be entitled to immunity: an

officer in Jones' position could have reasonably believed he was

not violating constitutional rights. Saucier, 533 U.S. at 206.

The district court recognized this, and there is no inconsistency

between its conclusion that Jones is entitled to immunity and the

jury verdict.

-46-

The district court summarized its reasons for granting

immunity25:

First, Jennings failed to present any evidence

that Jones' actions deviated from the standard

of conduct that should have been expected from

an objectively reasonable police officer under

the circumstances. Second, even if Jones' use

of the "ankle turn control technique" is

viewed as amounting to excessive force it did

not violate any "clearly established"

constitutional prohibition. Finally, the

undisputed evidence demonstrates that it was

"objectively reasonable" for Jones to believe

that he was acting lawfully.

Jennings, 2005 WL 2043945, at *5.

In reviewing the district court's grant of immunity on

JMOL, I assume arguendo that the evidence is taken in the light

most favorable to the jury verdict.26

25

Those reasons did not include the fact that the trial

court would itself have reached a different conclusion from the

jury on the excessive force issue. The district court, based on

its own assessments of the credibility of the witnesses and the

weight of the evidence, expressed its view that Jones had not used

excessive force. Jennings, 2005 WL 2043945, at *6. Nonetheless,

the district court expressly stated this was not the basis for its

immunity holding, acknowledging that a motion for JMOL does not

permit a court to make its own assessment regarding the weight of

the evidence. Id. at *7. The majority, however, states that "the

district court's qualified immunity analysis incorporated its

skepticism about the jury's fact-finding on the critical issue of

whether Jones increased his use of force." The majority does a

disservice to the district court by suggesting it did something it

expressly said it did not do.

26

Where we are reviewing a denial of qualified immunity by

a judge which is consistent with a jury verdict, we have said that

"the evidence must be construed in the light most hospitable to the

party that prevailed at trial." Iacobucci v. Boulter, 193 F.3d 14,

23 (1st Cir. 1999); see also Borges Colón v. Román-Abreu, 438 F.3d

1, 18 (1st Cir. 2006); Whitfield v. Meléndez-Rivera, 431 F.3d 1, 6

-47-

A. Effect of the Jury's Verdict

Two thoughts should be removed from the picture at the

outset. First, Jones did not break Jennings' ankle with reckless

or callous indifference to Jennings' federal rights. Second, he

did not knowingly violate the law. The jury verdict cannot, as a

matter of law, be taken to establish these points because they were

not elements of the claim that went to the jury. There was no

basis for punitive damages here. See Smith v. Wade, 461 U.S. 30,

56 (1983) (punitive damages under § 1983 available only "when the

defendant's conduct . . . involves reckless or callous indifference

to the federally protected rights of others"). Indeed, the law of

this case is that the evidence was insufficient to support such a

finding. See Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 210

(1st Cir. 2006). Although the amended complaint sought punitive

damages, the district court held that there was no basis in the

evidence to instruct the jury on the issue. Further, plaintiff did

not object to the lack of jury instructions on punitive damages,

and he does not challenge the omission of such instructions on

appeal. Moreover, on the evidence it is clear that Jones was not

"plainly incompetent," and he did not "knowingly violate the law."

(1st Cir. 2005). We have held that there is no prohibition on a

judge's reasonably accepting the jury's findings as his or her own

for purposes of qualified immunity. See Iacobucci, 193 F.3d at 23.

We have never explicitly discussed the reverse situation, where the

judge awards immunity in the face of a jury finding that there was

a constitutional violation. Jones has not made an argument as to

this point, so I bypass it.

-48-

Malley v. Briggs, 475 U.S. 335, 341 (1986). So denial of immunity

cannot rest on those grounds.

In my view, the majority's reversal of the trial judge's

grant of immunity undercuts the interests protected by the immunity

doctrine. The purposes of granting qualified immunity include:

avoiding "excessive disruption of government," Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); giving "a fairly wide zone of

protection in close cases," Roy v. Inhabitants of Lewiston, 42 F.3d

691, 695 (1st Cir. 1994); allowing officers "reasonably [to]

anticipate when their conduct may give rise to liability for

damages," Davis v. Scherer, 468 U.S. 183, 195 (1984); providing

"ample room for mistaken judgments," Malley, 475 U.S. at 343;

shielding officers from liability when the law did not clearly

proscribe the actions they took, Mitchell v. Forsyth, 472 U.S. 511,

528 (1985); and protecting "all but the plainly incompetent or

those who knowingly violate the law," Malley, 475 U.S. at 341. The

common theme of protecting reasonable judgment calls by officers,

such as this one, exists throughout qualified immunity law.

It is not inconsistent for an officer to have violated

constitutional rights, as the jury found here, but still be

entitled to immunity on the various prongs (described below) of the

immunity test. See Sallier v. Brooks, 343 F.3d 868, 871-72, 879-80

(6th Cir. 2003) (holding that prison clerks were entitled to

immunity despite jury verdict against them because it was not

-49-

clearly established at the time that mail from the courts was

protected "legal mail"); Figg v. Schroeder, 312 F.3d 625, 636-37

(4th Cir. 2002) (holding that officers were entitled to qualified

immunity on first prong of test despite jury verdict because

evidence at trial did not establish unreasonableness of seizures

under the Fourth Amendment); Clue v. Johnson, 179 F.3d 57, 60, 61-

62 (2d Cir. 1999) (holding that transit authority director was

entitled to immunity despite jury verdict for plaintiffs because

law was not clearly established at the time that plaintiffs'

activities were constitutionally protected from employer

retaliation); Warlick v. Cross, 969 F.2d 303, 310 (7th Cir. 1992)

(holding that, although jury found officer not to have had probable

cause for arrest, officer was entitled to immunity because law was

not clearly established as to circumstances in which officer found

himself).

The majority reasons that the jury, by its general

verdict, necessarily found that (1) Jennings had stopped resisting

and had announced his prior ankle injury, and (2) Jones nonetheless

increased the twisting pressure on Jennings' ankle and broke it.

The majority's reasoning entails a bit of legal fiction, since we

do not know what the jury found and these facts certainly were not

necessary to the verdict.27 On this record, there is considerable

27

The Supreme Court noted in Iacurci v. Lummus Co., 387

U.S. 86 (1967), reversing a court of appeals for entering JMOL, "We

do not share the Court of Appeals' confidence as to the meaning [of

-50-

ambiguity and no certainty about what underlying factual

conclusions motivated the general verdict.

the jury verdict] in light of the trial court's instructions

. . . ." Id. at 87. Nothing in the jury instructions here

required that the jury necessarily base its verdict on the

majority's proposed factual findings. The district court quite

properly did not instruct that the theory of plaintiff's case

required these two findings. The jury was instructed that in

determining whether Jones used excessive force it could consider

whether Jennings posed a threat to the safety of others; whether

the threat was immediate and serious; whether Jennings was

disrupting the search of the smoke shop; whether Jennings was

actively resisting arrest; the degree of force used; the

seriousness of the offense for which Jennings was being arrested;

and whether the degree of force was proportional to what was

appropriate under the circumstances. Iacurci cannot be written off

as idiosyncratic, nor is it easily distinguishable.

Further, the facts themselves provide alternatives, and

it is far from obvious on what subsidiary facts the verdict rested.

The jury could have found that the seriousness of the injury, a

broken ankle, was not justified by the charges Jennings was

arrested on -- disorderly conduct. This theory was argued by

plaintiff's counsel at closing, and was consistent with the jury

instructions. Or the jury could have concluded that the

application of force sufficient to break Jennings' ankle was itself

excessive, whether or not Jennings had continued to resist, and

whether or not Jones increased the amount of force. The jury could

have concluded that it was unreasonable for Jones to maintain the

same force once Jennings said something about his ankle. Or it

could have concluded that Jones maintained the same level of force

when, in its view, that level was excessive to begin with. It may

also be, as the district court noted, that the jury concluded that

Jones "continued to twist Jennings' ankle after Jennings had

stopped resisting." Jennings, 2005 WL 2043945, at *6. That is not

a conclusion that Jones "increased" the pressure, and again shows

that the jury did not necessarily find the facts as the majority

assumes.

There is another reason not to conclude that the verdict

against Jones necessarily entailed the majority's two factual

findings. At the start of trial, there were seven individual

defendants. There were also three plaintiffs, including Jennings'

mother. These plaintiffs asserted twenty-one different claims. On

the six claims that went to the jury, the jury ruled against

plaintiffs on all claims except for the excessive force claim

against Jones. Jurors sometimes reach compromise verdicts.

-51-

This is an important issue. It is true that where the

question is whether there is sufficient evidence to support a jury

verdict (the usual question on a motion for JMOL), the appellate

court will take all facts in favor of the verdict. But there is no

attack on the sufficiency of the jury verdict, as to at least the

second and third prongs of the immunity analysis. The attack is on

the trial judge's separate conclusion, a determination assigned to

the judge and not the jury, that Jones is entitled to immunity.

This raises the question of how the judge, in evaluating immunity,

is required to treat a general jury verdict, and that is precisely

the type of black hole in the law we discussed in Ringuette, 146

F.3d at 6, and in Kelley, 288 F.3d at 7 n.2.

Further, as a matter of logic, it does not necessarily

follow from a rule that a general verdict will be upheld by taking

facts in favor of the verdict when a number of theories could

support the verdict, that the jury has found a particular

combination of facts, or that the judge, on the immunity issue,

must deem the jury to have found particular facts. Indeed, the

majority acknowledges that the trial judge here thought the jury

verdict was based on a different theory and facts other than the

two facts the majority now insists were found.

These are important issues on which it would be helpful

to have guidance from the Supreme Court. But ultimately this case

need not resolve those issues because I believe the majority is

-52-

wrong, even within its own set of assumptions. Even if we assume,

arguendo,28 that the rule that facts must be taken in support of the

verdict permits the majority to assume its two facts, the district

court's finding of qualified immunity must nonetheless stand. I

will assume arguendo that Jennings met the first prong. Even so,

the officer is nonetheless entitled to immunity on the next two

prongs.29

B. Second Prong: Clearly Established Law

Officer Jones was undisputably acting within the scope of

his authority and his discretion. The burden then is on plaintiff

to demonstrate the existence of clearly established constitutional

law which the officer is said to have violated. Davis, 468 U.S. at

197; Horta v. Sullivan, 4 F.3d 2, 13 (1st Cir. 1993).

The second prong of the qualified immunity test asks

whether the constitutional right in question was "'clearly

established at the time of the alleged violation' such that a

reasonable officer would 'be on notice that [his] conduct [was]

unlawful.'" Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 61 (1st

28

In my view, the majority's focus on its two facts as

necessary findings does not represent "the jury's discernible

resolution of factual issues," Iacobucci, 193 F.3d at 23, but for

these purposes I will assume Iacobucci is satisfied.

29

The district court held, on the first prong, that the

jury verdict that there had been excessive force was not supported

by any evidence that no objectively reasonable officer would have

applied the ankle turn control technique as Jones did. Jennings,

2005 WL 2043945, at *7. It is not necessary to discuss this

finding.

-53-

Cir. 2004) (alterations in original) (quoting Suboh v. Dist.

Attorney's Office, 298 F.3d 81, 90 (1st Cir. 2002)); see also

Saucier, 533 U.S. at 202. This inquiry is a specific one, in which

it is necessary to consider the particular circumstances faced by

the officer. See Saucier, 533 U.S. at 201 ("This inquiry [under

the second prong] . . . must be undertaken in light of the specific

context of the case, not as a broad general proposition."); see

also Brosseau v. Haugen, 543 U.S. 194, 199-200 (2004); Suboh, 298

F.3d at 90. Although the facts of prior cases need not be "exactly

on all fours with the facts of this case" in order to conclude that

a right was clearly established, Suboh, 298 F.3d at 94, "the prior

case law must give the officer reasonable notice that the specific

conduct [he] is alleged to have committed in this litigation is

unlawful," Riverdale Mills, 392 F.3d at 66. Again, the burden is

on the plaintiff to make this showing, and the district court

correctly held that plaintiff had failed.

In the end, the majority's holding that the law was so

clearly established as to put the officer on clear notice that his

overall use of force, even increasing force, when the detainee had

stopped struggling (regardless of other circumstances) was

unconstitutional rests on two propositions. The first is that

clear notice is established by a single case from the Eleventh

Circuit which is said to be so close to this case as to have put

Jones on appropriate notice. The second is that there is no need

-54-

for particularized notice because notice of general principles is

enough. Indeed, the majority goes so far as to reason that it

should have been perfectly obvious to Jones that his use of force

was excessive, despite the fact that the only expert testimony was

directly to the contrary and the district court, which heard the

case, concluded otherwise. The jury verdict made no conclusion on

this issue, nor could it have.

1. Lack of Prior Case Law

There is no First Circuit case which gave Jones

appropriate notice, nor is there a clear consensus of other

persuasive authority giving such notice.

To start, a single opinion from another circuit is not,

as a matter of law, sufficient to meet the plaintiff's burden of

showing the law is clearly established. In Wilson v. Layne, 526

U.S. 603 (1999), the Supreme Court concluded that the law on a

particular issue was not clearly established, and stated:

[Plaintiffs] have not brought to our attention

any cases of controlling authority in their

jurisdiction at the time of the incident which

clearly established the rule on which they

seek to rely, nor have they identified a

consensus of cases of persuasive authority

such that a reasonable officer could not have

believed that his actions were lawful.

Id. at 617 (emphases added). Wilson rejected reliance on one case

as sufficient. Id. at 616-17. The case there, parenthetically,

was a summary judgment case, id. at 608, like Smith v. Mattox, 127

F.3d 1416 (11th Cir. 1997), on which the majority relies.

-55-

In Brady v. Dill, 187 F.3d 104 (1st Cir. 1999), we

expressly adopted Wilson's holding in concluding that the law was

not clearly established at the time of the defendants' conduct.

Id. at 116. We also applied the Wilson rule without dispute in

Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003) (equally

divided en banc court). The majority thus cannot rely on the

single decision of Smith v. Mattox to give fair notice.

Further, Smith does not provide such fair notice to the

officer, but supports the view that immunity was correctly granted.

Smith merely affirmed the district court's denial of summary

judgment on qualified immunity grounds because inferences, just

barely, could be drawn that the force used was obviously and

patently excessive. Id. at 1419. In Smith, the plaintiff had

earlier threatened the officer with a baseball bat, but had then

dropped the bat, run through a backyard, down a driveway, and into

another street, and then returned to the driveway of his mother's

house, where the officer found him. Smith said he then docilely

submitted to arrest, got down on the ground as requested, and

offered no resistance. Nonetheless, the officer struck him a blow

which broke his arm in multiple places. Id. at 1418. Notably,

Smith held that other inferences would permit a finder of fact to

conclude that the officer had behaved reasonably. That was because

even if Smith was not actively resisting

arrest at the very moment the force was

applied, he was before that moment; [the

officer] could reasonably have believed that

-56-

without some force restraining Smith, he would

have resumed either his attacks or his flight.

Thus, it was not unreasonable for [the

officer] to think that he was entitled to use

some force to put Smith into cuffing posture.

Id. Smith does not help Jennings; it helps Jones. The majority

also argues that Jones offered no contrary precedent to Smith.

That is not true, and the majority confuses who has the burden to

show clear notice.

Other court of appeals cases, in addition to Smith, tend

to support the constitutionality of Jones' actions and so undercut

plaintiff's claims that Jones was on clear notice from prior case

law that his particular application of force was unreasonable.

Many of these cases involve situations, as here, where officers

were attempting to handcuff an individual who had been resistant.

See Rodriguez v. Farrell, 294 F.3d 1276, 1278-79 (11th Cir. 2002)

(finding no excessive force, and noting that an officer need not

credit an arrestee's claims of pain, especially when the arrestee

is in the process of being handcuffed); Jackson v. City of

Bremerton, 268 F.3d 646, 650-53 (9th Cir. 2001) (finding no

excessive force where plaintiff suffered a fractured finger after

officer pushed plaintiff to the ground for purpose of handcuffing

her despite being told of preexisting back and shoulder injuries,

and where plaintiff had earlier posed a threat to officers' safety

and ability to control a crowd); Huang v. Harris County, No.

00-20806, 2001 WL 822534, at *10 (5th Cir. June 22, 2001) (holding

-57-

that force was reasonable where officer broke resisting arrestee's

thumb by twisting her wrist, in an effort to "prevent her from

kicking him . . . and place her in handcuffs"); Brownell v. Figel,

950 F.2d 1285, 1288, 1293 (7th Cir. 1991) (finding no

constitutional deprivation where officers employed two different

pain techniques, application of pressure on the plaintiff's

knuckles and on a nerve behind his jaw); Eberle v. City of Anaheim,

901 F.2d 814, 820 (9th Cir. 1990) (upholding the use of a "finger

control hold" to remove a belligerent spectator from a sports

arena). Under these cases, an officer in Jones' position could

reasonably have concluded that his conduct was not

unconstitutional.

2. Need for Particularity and Obviousness

For a variety of Fourth Amendment claims involving

reasonableness and judgment calls, this circuit has required that

plaintiff refer to particularized prior cases with similar facts.

E.g., Buchanan v. Maine, 469 F.3d 158, 168-69 (1st Cir. 2006);

Riverdale Mills, 392 F.3d at 65-66; Napier v. Town of Windham, 187

F.3d 177, 189 (1st Cir. 1999). That is because the Fourth

Amendment's touchstone of reasonableness generally requires careful

consideration of the totality of the circumstances. "[F]or the

most part per se rules are inappropriate in the Fourth Amendment

context," and consideration of the "totality of the circumstances"

is required. United States v. Drayton, 536 U.S. 194, 201, 207

-58-

(2002).30

In excessive force cases, our rule is that there is an

even greater emphasis on the requirement of particularity, where

officers act under pressure and must make very quick judgments.

See Wilson, 526 U.S. at 615 ("[T]he right allegedly violated must

be defined at the appropriate level of specificity before a court

can determine if it was clearly established."); Priester v. City of

Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (observing that

"generally no bright line exists for identifying when force is

excessive").31 The test for excessive force "does not always give

30

Other circuits have taken a similar approach to

particularity in the context of Fourth Amendment reasonableness

inquiries, especially in excessive force cases. See Walker v. City

of Orem, 451 F.3d 1139, 1151 (10th Cir. 2006) (noting in a Fourth

Amendment unreasonable detention case that "allegations of

constitutional violations that require courts to balance competing

interests may make it more difficult to find the law 'clearly

established' when assessing claims of qualified immunity" (quoting

Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.

1992)) (internal quotation marks omitted)); Williams v. Kaufman

County, 352 F.3d 994, 1012 (5th Cir. 2003) (holding that prolonged

detention was unlawful, but affirming qualified immunity because

applicable Supreme Court law, which "allow[ed] a seizure without

probable cause when the proper balance [was] struck between law

enforcement and personal security interests," failed to put officer

on notice); Priester v. City of Riviera Beach, 208 F.3d 919, 926

(11th Cir. 2000) ("In the context of . . . excessive force claims,

we have noted that generally no bright line exists . . .; we have

therefore concluded that unless a controlling and materially

similar case declares the official's conduct unconstitutional, a

defendant is usually entitled to qualified immunity.").

31

As one commentator has noted in light of the chaotic

circumstances surrounding most excessive force claims, while "there

may be cases . . . where the law was so clearly settled that the

finding of a constitutional violation would mean that the defendant

loses on qualified immunity as well[, such cases] will be

-59-

a clear answer as to whether a particular application of force will

be deemed excessive by the courts. This is the nature of a test

which must accommodate limitless factual circumstances." Saucier,

533 U.S. at 205. "[T]he Supreme Court has cautioned that in many

cases the generalized holdings of [Tennessee v. Garner, 471 U.S. 1

(1985),] and [Graham v. Connor, 490 U.S. 386 (1989),] will not

provide sufficient notice to police officers" as to what

constitutes excessive force. Whitfield v. Meléndez-Rivera, 431

F.3d 1, 8 (1st Cir. 2005). As reasoned above, Jennings has not

provided any such particularized prior case.

There is an exception to the need for particularized

prior law where the police conduct is so excessive and lies so

obviously at the core of what the Fourth Amendment prohibits that

the unlawfulness of the conduct would have been readily apparent to

an officer. See United States v. Lanier, 520 U.S. 259, 270-71

(1997); Brady, 187 F.3d at 116. The majority tries to fit within

this exception. It reasons that it was so obvious that the use of

force was excessive that Jones was clearly on notice for purposes

of the second prong. The majority attempts to justify its

obviousness conclusion by saying there is a clear and obvious

dividing line between use of force and increased use of force. It

relatively rare in the Fourth Amendment . . . excessive force

setting because of the very fact-specific nature of these issues."

2 S. Nahmod, Civil Rights and Civil Liberties Litigation: The Law

of Section 1983 § 8:19.50, at 103 (4th ed. 2006).

-60-

cites no cases for that point, and the case law, described earlier,

goes the other way. The majority's conclusion is not supported by

the facts or by the case law.

As the district court pointed out, there are no cases

holding that the use of the ankle turn control technique, which

itself involves the use of varying degrees of force, is

unconstitutional. Jennings, 2005 WL 2043945, at *9. Indeed, the

use of pain, even when an individual complains of pain, is an

established technique to bring an arrestee under control and to

prevent possible injury to an officer. Case law has clearly

established that the use of similar application-of-pressure

techniques, even those involving increasing amounts of pain, does

not amount to excessive force. There certainly are cases in which

an officer's use of force is so obviously excessive that the

officer is on clear notice; this is not one of them.

C. Third Prong: Whether an Objectively Reasonable Officer

Could Have Concluded that Jones' Actions Were Lawful

The third prong of our qualified immunity test asks

"whether a reasonable officer could have concluded that his actions

did not violate [the] plaintiff['s] constitutional rights."

Tremblay v. McClellan, 350 F.3d 195, 199 (1st Cir. 2003). This

inquiry acknowledges that "law enforcement officials will in some

cases reasonably but mistakenly conclude that [their conduct] is

. . . lawful." Anderson v. Creighton, 483 U.S. 635, 641 (1987).

In Saucier, the Supreme Court explained how the third prong applies

-61-

in excessive force cases:

It is sometimes difficult for an officer to

determine how the relevant legal doctrine,

here excessive force, will apply to the

factual situation the officer confronts. An

officer might correctly perceive all of the

relevant facts but have a mistaken

understanding as to whether a particular

amount of force is legal in those

circumstances. If the officer's mistake as to

what the law requires is reasonable, however,

the officer is entitled to the immunity

defense.

533 U.S. at 205.

Under the third prong, an officer who makes "a reasonable

judgment call" is entitled to qualified immunity. Buchanan, 469

F.3d at 170. "The calculus of reasonableness must embody allowance

for the fact that police officers are often forced to make

split-second judgments -- in circumstances that are tense,

uncertain, and rapidly evolving -- about the amount of force that

is necessary in a particular situation." Graham, 490 U.S. at 396-

97. On these facts, an objectively reasonable officer could have

believed that Jones' use of force -- and its degree -- was lawful.32

32

The district court reached its conclusion based on the

following factual findings, which have ample support in the record.

Jones did not know why Jennings was being

arrested or whether he was armed. Nor could

Jones have known, with any certainty, why

Jennings failed to heed orders to show his

hands. Moreover, even if Jennings had stopped

actively resisting, Jones had no way of

knowing whether Jennings would resume kicking

or resisting if Jones released his ankle hold.

-62-

There are a number of reasons for this. First, this was

an instance of quick judgment by an officer in a chaotic situation.

The district court stated that the entire series of these events

took place in a chaotic scene over the course of about one minute.

The key events, from when Officer Hill got up from the floor to

when Jennings shouted in pain, took place within "several seconds."

Jennings has represented the time in question to last anywhere from

twelve to eighteen seconds. In this short time frame, a reasonable

officer easily could have made mistakes as to Jennings' degree of

resistance, the degree of risk Jennings posed to the officers, and

the appropriate level of force to employ.

Concern over the safety of the officers and others was

entirely reasonable. Jones testified he tried to secure Jennings'

ankle both for his own safety, to prevent Jennings from kicking him

while he was kneeling next to Jennings, and to lessen Jennings'

In addition, . . . Jones and other troopers at

the Academy were taught that the ankle control

technique is appropriate to subdue an arrestee

who is actively resisting; to protect against

the possibility that an arrestee who

previously engaged in assaultive behavior

might resume that behavior and/or to induce

compliance by an arrestee who is passively

resisting. Furthermore, Delaney, the only

expert witness who testified, indicated that

Jones acted properly and in accordance with

departmental policy regarding use of the ankle

turn control technique.

Jennings, 2005 WL 2043945, at *11. The district court's conclusion

rests on subsidiary factual findings, which are not clearly

erroneous.

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resistance to arrest. He was also concerned that Jennings might

have a weapon because he could not see Jennings' hands. Jennings

himself acknowledged that at least one of his hands was not visible

for a time. There is no doubt Jennings was resisting the officers

earlier in the encounter. That was shown in the videotape.

Even if Jennings had just stopped kicking and flailing,

the undisputed evidence demonstrates that (1) Jennings was not

totally secured at the time his ankle was broken, (2) Jennings had

posed a threat to the safety of the officers and others just

seconds before, (3) the officers were having a difficult time

getting the flex cuffs on Jennings, and (4) Jones' overall use of

force was, in the opinion of the expert, reasonable under the

circumstances.33 Lt. Delaney, the only expert witness on use of

33

The majority argues that Lt. Delaney's assessment of the

reasonableness of Jones' actions did not keep "the relevant factual

circumstances in mind" because the factors listed by Delaney to

support his view "all occurred prior to the time that Jennings

ceased to resist." The majority's argument is misguided. Delaney

listed a number of factors he considered relevant to his opinion,

including Jennings' noncompliance and assaultive behavior, but

these were not the only circumstances he had in mind. The trial

transcript makes clear that Delaney's opinion was based on the same

videotape the majority says demonstrates that Officer Hill walked

away after pulling Jennings' left arm out from under his body.

Further, the majority fails in its attempt to distinguish

"use of force" from "increase in force" as a matter of evidence.

The transcript is clear that the expert was asked about the

reasonableness of Jones' use of force overall, not about the

reasonableness of the use of the ankle turn control technique

without an increase in force. Even if the central issue in the

case is the increase in force on Jennings' ankle, Delaney's

testimony directly addresses the reasonableness of Jones' overall

conduct.

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force, testified that until Jennings was "totally cuffed up and

secured,"34 it was appropriate for Jones to continue using the same

compliance technique as he had, and alternative compliance

techniques were not acceptable. Not even Jennings asserts that he

was secured in handcuffs at the time his ankle was broken. Nor did

any of his witnesses. Jennings asserted only that he had stopped

moving and was not resisting arrest. And Officer Hill was clear

that Jennings was not in cuffs when Hill stood up. Indeed, Hill

got out of the way because other officers were having trouble

cuffing Jennings.

The majority says it is irrelevant that Jennings was not

handcuffed; the only important consideration is that Jennings had

stopped struggling. Not so. Jennings had just been subdued by

Hill; Hill then got up and Jennings could, until he was cuffed,

have started up again at any time. An officer could reasonably

view this as a time of great risk, and even greater risk than when

Hill had subdued Jennings. The majority claims that expert

testimony supports its view that any increase in force once Jones

stopped struggling was unreasonable. The expert said just the

opposite. Delaney testified that the degree of force was a

34

Delaney testified specifically about the period when

officers were trying to get Jennings "cuffed up and secured." He

explained that flex cuffs, which are made of plastic, are more

difficult to apply than metal cuffs, and that it is very hard to

get them on someone who does not want to be handcuffed.

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judgment call, and that resistance was one factor and risk was

another. Even if Jones were wrong about the degree of risk, his

judgment was not unreasonable.

Jennings' argument is that regardless of whether he was

cuffed, and even if the ankle turn control technique is acceptable,

Jones applied the technique with too much force. But that is

precisely in the area of judgment calls which are protected by

qualified immunity. The district court directly addressed the

degree of force or tension which Jones applied to the ankle,

concluding that

[t]he ambiguity of the factual situation

confronting Jones; the "split second" nature

of the decision that he was required to make;

the existence of established departmental

policy permitting use of the ankle control

technique under such circumstances; and the

absence of any case law prohibiting its use,

virtually compel the conclusion that it was

objectively reasonable for Jones to believe

that he acted lawfully.

Jennings, 2005 WL 2043945, at *11.

Under our case law, the district court committed no error

in finding qualified immunity on the basis that this was a

protected judgment call. See Buchanan, 469 F.3d at 170; Cox v.

Hainey, 391 F.3d 25, 31-32 (1st Cir. 2004); Vargas-Badillo v.

Diaz-Torres, 114 F.3d 3, 7 (1st Cir. 1997).

Thus, the majority errs in assuming the jury necessarily

found two facts and in reinstating the jury verdict based on those

ungrounded assumptions. The majority has reinstated that jury

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verdict. While I disagree with that, the majority correctly

remands to the district court to rule, ab initio, on the motions

for new trial and for remittitur.

For the reasons stated above, I respectfully dissent as

to the majority's holdings.

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