Parker v. Gerrish, et al

Filing 920081105

Opinion

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var WPFootnote1 = 'Of the Federal Circuit, sitting by designation.\
'

var WPFootnote2 = 'During the training, Gerrish voluntarily submitted to being\
"tased" for one second. Before being "tased," Gerrish signed a\
release recognizing the risk of, among other things, uncontrolled\
falls.\
'

var WPFootnote3 = 'Gerrish\'s counsel\'s oral Fed. R. Civ. P. 50(a) motion in its\
entirety is as follows:\
\
                   Your Honor, at this point I\'d like to make my\
motion under Rule 50 for judgment as a matter\
of law.\
\
                   I think the -- two separate issue in here,\
first, whether or not the plaintiff has made\
out an actual violation of the Fourth\
Amendment on unreasonable use of force. \
Obviously the Taser itself has not been\
declared by any Court as a per se\
unconstitutional use of force. And so I think\
that the issue is was the force used to\
overcome what Officer Gerrish perceived as\
physical resistance and a threat to Officer\
Caldwell unconstitutional and unreasonable and\
excessive.\
\
                   I think that Mr. Parker himself in his\
testimony admitted that he resisted, that he\
resisted the first attempts to take him into\
custody, and that just before he was tased\
that -- that he did not willingly give up his\
hands, that his hands had to be pried apart by\
Officer Caldwell and that at that point in\
time it\'s not just what is actually happening\
but what Mr. -- I\'m sorry, what Officer\
Gerrish and any objectively reasonable officer\
in his position would have perceived as a\
threat, and the thought was lawful in response\
to it. So I think that Mr. Parker\'s own\
testimony about his resistance defeats the\
Fourth Amendment claim.\
\
                   I think that what you can see on the video and\
what any reasonable juror would have to see is\
the reaction of Officer Caldwell. And taken\
in conjunction with Mr. Parker\'s testimony\
that he was not giving up his hands and that\
they were having to be pried apart and then\
the reaction that you can clearly see on the\
video in the second before he\'s tased when --\
when Officer Caldwell\'s body shifts\
dramatically and takes a dip and pushes\
forward, that at that point that an\
objectively reasonable officer in Officer\
Gerrish\'s position and under the totality of\
the circumstances of all he\'s seen up to this\
point in time could reasonably have inferred\
that there was a threat to Officer Caldwell,\
that he was resisting being taken into\
custody, and it justified the use of the Taser\
to overcome that resistance.\
'

var WPFootnote4 = 'Furthermore, it is even possible that the jury found that\
Gerrish was not responsible for the shoulder injury and awarded\
$111,000 just for the nerve damage. Parker described the pain\
inherent in being shot with a Taser and reported persistent\
numbness in his thumb. A medical expert confirmed nerve damage to\
Parker\'s arm and delivered an expert opinion that the Taser was the\
cause of that injury. We are unable to say, on this record, that\
$111,000 is an irrationally large award for such injury and pain.\
'

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