"U Breaka Da Ankle, I Breaka U Bank Account"--$301,100 Plus Costs And Attorney Fees

JENNINGS v. JONES, USCA-1 No. 05-2522, 2007 U.S.App. LEXIS 5268, on appeal from USDC-RID, before USCJs Toruella, Lynch, and Lipez, opinion by Lipez, dissent by Lynch, filed 07 Mar 2007.

LONG STORY SHORT: Defendant officer was not entitled to qualified immunity when the evidence tended to show that he kept twisting plaintiff's ankle until it broke, even after plaintiff stopped resisting arrest, and the $301,100 jury verdict would stand, because defendant abandoned on appeal his motions for remittitur and new trial. Binding in MA, ME, NH, PR, RI.

FACTS: Plaintiff, a member of the Narragansett Indian Tribe, was working at the Tribe's smoke shop in Charlestown, RI when the RI State Police dropped in to seize all the cigarettes in the shop, pursuant to a valid warrant. Plaintiff loudly and profanely protested, and eventually an officer told him to go outside. When Plaintiff did so, RISP video showed that some officers moved to arrest him. He resisted for several seconds while the officers wrestled with him and Defendant applied an ankle turn control technique. Plaintiff stopped resisting and said he had broken that ankle before and had just had surgery. Plaintiff kept yelling in pain as Defendant increased the force on Plaintiff's ankle until it broke.

PROCEDURE: Plaintiff sued Defendant in U.S. District Court for the District of Rhode Island, seeking damages for state-law battery and per 42 U.S.C. § 1983 for excessive force constituting an unreasonable seizure in violation of the Fourth Amendment. The case went to jury trial, where a number of other officers that Plaintiff had sued were exonerated one way or another. As to Defendant, his expert witness in the use of force testified that an officer must adjust his use of force during an arrest, based on the subject's resistance or lack of it. Two other witnesses testified that they saw Plaintiff cease resisting and heard him yell in pain just before Defendant broke his ankle. The jury found Defendant liable for excessive force and battery and awarded Plaintiff compensatory damages of $301,100.

Defendant moved for judgment as a matter of law after the verdict (aka jnov), and alternative motions for a new trial and remittitur. The trial court ruled that Plaintiff had not presented evidence supporting a reasonable finding of excessive force, and even if he had, the law was not clearly established that Defendant's ankle turn was unconstitutional. Defendant was entitled to qualified immunity. JNOV GRANTED in all respects. The trial court further ruled that Defendant's motions for new trial and remittitur were moot. Plaintiff appealed to the U.S. Court of Appeals for the First Circuit. Defendant did not cross-appeal or raise as an issue the trial court's denial of its motions for new trial and remittitur.

DECISION: Use of force is necessary and expected in order to effect arrests, but such force must be reasonable under the Fourth Amendment. The First Circuit uses a three-step procedure to determine qualified immunity. First, Plaintiff had to show the deprivation of an actual constitutional right. He did so by means of eyewitness testimony that he stopped resisting, after which Defendant increased the force on his ankle. Also, Defendant's own expert conceded that force must be adjusted according to the subject's behavior, which was not essential to the jury's verdict but could have helped their decision.

Second, the right in question had to be clearly established at the time of the incident. Plaintiff met this one as well, because even without prior similar caselaw, it would have been plain that use of increased force after a subject stops resisting is objectively unreasonable. Third, a reasonable officer in Defendant's position would have known he was violating Plaintiff's rights. In other words, an officer may be mistaken and not be liable for an intentional violation, but here, a reasonable officer in Defendant's position would not have believed that it was lawful to increase the force on Plaintiff's ankle after Plaintiff had stopped resisting.

Defendant was not entitled to qualified immunity. Furthermore, even though the trial court erroneously ruled that Defendant's motions for new trial and remittitur were moot, Defendant did not press for a conditional ruling. Neither did he mention them on appeal. Together, these factors constituted Defendant's abandonment of new trial or remittitur. JNOV VACATED; JURY VERDICT REINSTATED; costs to Plaintiff.

The dissent would have affirmed the trial court's JNOV on qualified immunity grounds, or at least would have remanded for a new trial.

EDITORIAL: Gotta go with the jury. It's easy to get "target fixation" in the heat of battle and keep doing what you were doing even when you shouldn't, but here, looks like the officer stepped over the line. Not only is he now stuck with a verdict even bigger than my student loan balance, there's all those depo transcripts and expert fees to pay. What's more, since this was a 1983 case, next will be a six-figure attorney fee motion. I hope somebody has insurance.