explaining that "[a]lthough the officer has discretion, within reasonable limits, to judge the degree of force required under the circumstances, when 25 there is substantial evidence of unusual force," the question of whether the force was excessive is for the jury (internal quotation marks omitted)
How later courts described this case
- explaining that "[a]lthough the officer has discretion, within reasonable limits, to judge the degree of force required under the circumstances, when 25 there is substantial evidence of unusual force," the question of whether the force was excessive is for the jury (internal quotation marks omitted)
- explaining that "it is possible, in some instances, for an arrest to be constitution- ally valid and yet illegal under state law" and holding that evidence was sufficient to justify a finding of common law assault and battery even though it was insufficient to prove a constitutional tort
- recognizing that false not specifically mention those claims arrest is one way to commit false again. Nor does anyone else – at the imprisonment
- "The threshold for determining whether the limits of privileged force have been exceeded for purposes of liability under Section 1983 is higher than that for a normal tort action.”
Written by the judges who cited it.
The opinion
*218 Judge JOHNSON
concurring in part and dissenting in part.
I concur in part and dissent in part. I concur in the majority opinion except as to that portion of the holding which states that the issue of common law assault and battery should have been submitted to the jury. To this part, I respectfully dissent. Under the given circumstances of the case and considering the evidence in the light most favorable to the plaintiff I do not believe there is substantial evidence of unusual force shown in the arresting of plaintiff. Plaintiff even testified that he did not intend for the officer to arrest him. The evidence shows that the officer used such force as was necessary to properly discharge his duties and overcome plaintiffs resistance.