Ciolino, et al v. Gikas, et al
Filing
OPINION issued by Sandra L. Lynch, Appellate Judge; William J. Kayatta , Jr., Appellate Judge and David J. Barron, Appellate Judge. Published. [16-2107]
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United States Court of Appeals
For the First Circuit
No. 16-2107
ALFONSO CIOLINO,
Plaintiff, Appellee,
CINSIA CIOLINO,
Plaintiff,
v.
GEORGE GIKAS,
Defendant, Appellant,
DAVID EARLE; AARON EASTMAN; BRIAN CROWLEY; FRANK G.
COUSINS, JR., Sheriff, Essex County; CITY OF GLOUCESTER,
Commonwealth of Massachusetts; JOHN DOE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
Stephen C. Pfaff, with whom Louison, Costello, Condon & Pfaff
LLP was on brief, for appellant.
Robert S. Sinsheimer, with whom Wesley B. Stoker and
Sinsheimer & Associates were on brief, for appellee.
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June 28, 2017
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LYNCH,
Circuit
Page: 3
Judge.
Date Filed: 06/28/2017
This
excessive
Entry ID: 6102520
force
case,
brought under 42 U.S.C. § 1983, stems from an arrest on June 30,
2013.
Defendant George Gikas, a police officer on crowd-control
duty, grabbed plaintiff Alfonso Ciolino from behind by the collar
and dragged him backward and downward to the pavement, after seeing
Ciolino taunting K-9 dogs.
The forceful takedown caused Ciolino
to sustain a torn rotator cuff.
The incident was captured on a
24-second video, admitted into evidence at trial.
We are faced
with the question of whether to sustain the district court's postverdict denial of qualified immunity to Sergeant Gikas.
See
Ciolino v. Eastman, No. 13-cv-13300-ADB, 2016 WL 4148197 (D. Mass.
Aug. 4, 2016).
We affirm.
The jury found that Gikas violated Ciolino's Fourth
Amendment right to be free from excessive force.
Responding to
special questions on the verdict form, the jury also found that
Ciolino failed to comply with police orders and taunted K-9 dogs
immediately prior to his arrest and that Gikas had probable cause
to arrest Ciolino on the night in question.
The jury did not
answer one of the special questions, which asked whether Ciolino
was "inciting the surrounding crowd immediately prior to his
arrest."
The district court then denied Gikas's post-verdict
motion for judgment as a matter of law, rejecting Gikas's argument
that he was entitled to qualified immunity.
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We agree with the
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district court that a reasonable officer in Gikas's position would
have understood that Gikas's actions violated Ciolino's Fourth
Amendment right to be free from excessive force.
We also find no abuse of discretion in the district
court's decisions not to define the word "incited" for the jury,
in the context of the special question on the verdict form, and to
allow the jury to leave that question unanswered.
I. Background
A.
Facts
We adopt the district court's recitation of the facts
but provide the following summary.
view
the
deferring
facts
"to
in
the
factual issues."
the
light
jury's
most
Like the district court, we
favorable
discernible
to
resolution
the
verdict,
of
disputed
Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir.
2010) (quoting Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir.
1999)).
On Saturday, June 29, 2013, Alfonso Ciolino, his wife
Cinsia, and two other couples attended together the annual St.
Peter's street festival in downtown Gloucester, Massachusetts.
The group eventually arrived at the St. Peter's Club on Main Street
("the Club"), and Ciolino briefly went inside with one companion
to use the men's bathroom while the rest of the group waited
outside.
Ciolino testified that he had "maybe a beer and a half,
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maybe two" over the course of the evening and that he was not drunk
when he left the Club around midnight.
A crowd had gathered outside the Club shortly after
midnight, which was approximately when Ciolino left the Club.
Law
enforcement officers from different departments and K-9 dogs were
present for crowd-control purposes.
Gikas, a Sergeant from the
Essex County Sheriff's Department, and his colleague, Sergeant
John Pickles, were present on K-9 duty.
Two other officers from
the same department, Aaron Eastman and David Earle, were also
present on plainclothes duty.
Around the time Ciolino was leaving
the Club, officers ordered the crowd to disperse.
Some members of
the crowd began moving along the sidewalk; others moved slowly or
not at all.
Sergeant Gikas and Sergeant Pickles were standing in
the street, facing the crowd, which was gathered on the sidewalk.
Gikas and his dog were about six feet away from the sidewalk;
Pickles and his dog were in front of Gikas, closer to Ciolino and
the sidewalk.
Ciolino walked away from the Club's exit, in the
direction of Sergeant Gikas and Sergeant Pickles.
On the video, Ciolino is seen walking along the sidewalk,
pausing in front of Pickles's dog in the street, and gesturing
toward the dog, without ever touching the dog or leaving the
sidewalk.
Ciolino admits that he also said something along the
lines of "Look, the dogs got . . . muzzle[s] in their mouths.
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They
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can't do anything."
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It is clear on the video, and is undisputed,1
that Ciolino then turns his back to the street, away from Gikas,
Pickles, and the dogs.
barking
continuously
The video shows Gikas's and Pickles's dogs
toward
the
crowd
both
before
and
after
Ciolino's gesture.
The video shows no visible reaction by Pickles after
Ciolino's gesture toward Pickles's dog.
Nor does anyone in the
crowd appear to react, although the video captures only a portion
of the crowd.
The district court stated, and the video confirms,
that Ciolino "did not use or threaten violence, nor was he inciting
the crowd to act violently" in a manner that warranted a sudden
and forceful arrest.
The
video
Ciolino, 2016 WL 4148197, at *5.
shows
Gikas
then
walking
up
to
Ciolino,
grabbing Ciolino from behind by at least his shirt collar, and
yanking Ciolino forcibly backward and downward, off the sidewalk
and onto the pavement in the street.2
Ciolino is seen falling
1
Witnesses at trial, including Gikas, confirmed that
Ciolino had turned away from the dogs and the officers in the
street, and was facing the crowd on the sidewalk, before Gikas
approached him and seized him.
2
At oral argument, Gikas's counsel disputed the notion
that Gikas "threw" Ciolino to the ground. That word was used at
trial both by Ciolino and by two witnesses to Ciolino's arrest.
The video makes it clear that Gikas seized Ciolino and used force
in bringing him to the ground.
The jury's verdict establishes
that the force, however characterized, was excessive. Gikas does
not challenge the sufficiency of the evidence supporting the
verdict.
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awkwardly to the ground, landing hard on his right side. The video
ends with Eastman and Earle, the plainclothes officers, converging
on the prone Ciolino and handcuffing him.
Ciolino was later
diagnosed with a torn rotator cuff as a result of the incident.
Ciolino was taken to the police station after his arrest
and charged with a Gloucester ordinance violation and disorderly
conduct.
The
Gloucester
District
Court
later
dismissed
the
charges.
B.
District Court Proceedings
Ciolino and his wife brought suit in federal court on
December 31, 2013, pleading § 1983 and state law claims against
Gikas, several other officials, and the City of Gloucester.3
September
3,
2015,
the
district
court
granted
in
part
On
the
defendants' motion for summary judgment but allowed the § 1983
excessive force claim and a state law malicious prosecution claim
to proceed to trial against Gikas, Eastman, and Earle.
The trial began on January 19, 2016.
The verdict form
included four questions framed and posed by the district court,
over Ciolino's objection.
The jury answered "yes" to Questions
3(a), 3(b), and 3(c):
3
Officers Eastman, Earle, and Brian Crowley were also
named as defendants, as was Frank Cousins, Jr., the Sheriff of
Essex County. All claims against Crowley, Cousins, and the City
of Gloucester dropped out of the case before trial. The jury found
Eastman and Earle not liable.
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a)
Did Mr. Ciolino fail to comply with any orders from law
enforcement officers immediately prior to his arrest?
b)
Did the Defendants have probable cause to arrest Mr.
Ciolino on the night in question?
c)
Was Mr. Ciolino taunting or inciting any of the [K-9]
dogs immediately prior to his arrest?
The jury chose not to answer Question 3(d):
d)
Was Mr. Ciolino inciting the
immediately prior to his arrest?
surrounding
crowd
The district court had instructed the jury to "leave [Question
3(d)] blank" if they could not agree on a yes or no answer.
On January 25, 2016, the jury found Eastman and Earle
not liable and found Gikas liable as to the § 1983 excessive force
claim.
The jury awarded Ciolino $140,000 in damages.
On August 4, 2016, in a written order, the district court
denied
Gikas's
post-verdict
motion
for
qualified
immunity.4
Viewing the record in the light most favorable to the verdict, the
district court held that Ciolino had "posed no immediate threat to
the safety of the crowd, the officers, or the [K-9] dogs," Ciolino,
2016 WL 4148197, at *4; that Ciolino's criminal offense (if any)
had been minor and had involved neither violence nor resistance to
arrest, id. at *5; and that the situation outside the Club had not
been so "volatile" or so "rapidly escalating" as to justify a
sudden and aggressive police response, id.
4
The court concluded
At the close of the plaintiff's case, the district court
had reserved a ruling on the defendants' motion until after the
jury's verdict. See Fed. R. Civ. P. 50.
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"that, at the time of the incident on June 30, 2013, it was clearly
established that forcibly throwing a suspect to the ground for
purposes of making an arrest would constitute excessive force" in
such circumstances.
Id.
The court cited three First Circuit
cases, decided before the incident, to support that holding.
See
Raiche, 623 F.3d at 39; Morelli v. Webster, 552 F.3d 12, 24 (1st
Cir. 2009); Alexis v. McDonald's Rests. of Mass., Inc., 67 F.3d
341, 346, 353 (1st Cir. 1995).
II. Special Jury Question 3(d)
Question 3(d) on the verdict form asked the jury whether
Ciolino was "inciting the surrounding crowd immediately prior to
his arrest."
court
a
'incited.'
During its deliberations, the jury sent the district
question
concerning
Question
3(d):
"Please
define
Are we being asked if Mr. Ciolino was attempting to
incite the crowd or if he was successful in inciting the crowd?"
Gikas's counsel argued that the word should be defined
for the jury as including "attempt[ing] to incite," and that,
regardless, the jury should be required to answer the question.
The district court chose not to offer a definition to the jury,
reasoning
that
no
definition
had
been
offered
during
jury
instructions and that, in any event, the question was merely
advisory.
The court responded to the jury's question as follows:
Question 3(d) asks you to make certain factual
findings as the finders of fact. And if you
can make that factual finding consistent with
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the rest of my instructions, you should make
it.
If you are unable to come to an agreement on
that one question, please leave it blank.
Gikas argues on appeal that the district court erred by
declining to clarify the definition of "incited" and by allowing
the jury not to answer Question 3(d).
decisions
for
abuse
of
discretion.
We review each of those two
See
Uphoff
Figueroa
v.
Alejandro, 597 F.3d 423, 434 (1st Cir. 2010) (applying abuse of
discretion review to "claimed errors in instructions' form or
wording" and to "preserved objections to special verdict forms");
Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 134 (1st Cir. 2004)
("To determine whether the issues were fairly presented to the
jury, we examine the court's instructions and the wording of the
verdict form as a whole.").
The district court permissibly exercised its discretion
by declining to provide a definition of "incited," which is not a
word "outside of [an ordinary] juror's understanding."
United
States v. Fulmer, 108 F.3d 1486, 1495 (1st Cir. 1997); see also
United States v. Stefanik, 674 F.3d 71, 74 (1st Cir. 2012) (stating
that the district court "was not compelled to give a definition
[of the word 'intimidate'] even when the jury requested one").
The district court also acted within its discretion when
it allowed the jury not to answer the advisory Question 3(d).
District courts may submit "special interrogatories to the jury"
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in order to elicit factfinding that is relevant to the court's
legal conclusion on qualified immunity.
Singh v. Blue Cross/Blue
Shield of Mass., Inc., 308 F.3d 25, 34 n.9 (1st Cir. 2002) (quoting
St. Hilaire v. City of Laconia, 71 F.3d 20, 24 n.1 (1st Cir.
1995)).
District
courts
are
not
required
to
pose
any
such
questions.
In our view -- and in the district court's view -- an
answer to Question 3(d) was not necessary to the jury's liability
findings.
Nor was an answer necessary to the district court's
qualified immunity ruling.
Indeed, the district court confirmed
that its immunity holding "would have been the same if the special
questions had not been posed."
Ciolino, 2016 WL 4148197, at *6
n.3.
III. Qualified Immunity
We review de novo "the district court's denial of a postverdict motion for judgment as a matter of law under Rule 50," and
we
"view[]
verdict."
Cir.
the
evidence
in
the
light
most
favorable
to
the
Kennedy v. Town of Billerica, 617 F.3d 520, 527 (1st
2010).
In
qualified
immunity
analysis,
both
elements
(described below) of the question of whether the law was clearly
established are legal determinations, entitled to de novo review.
See Stamps v. Town of Framingham, 813 F.3d 27, 33, 39 (1st Cir.
2016) (citing Elder v. Holloway, 510 U.S. 510, 516 (1994));
Decotiis v. Whittemore, 635 F.3d 22, 36–37 (1st Cir. 2011).
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Qualified Immunity Framework
Qualified immunity protects public officials from § 1983
suits for damages if their actions "d[id] not violate clearly
established
statutory
or
constitutional
reasonable person would have known."
rights
of
which
a
White v. Pauly, 137 S. Ct.
548, 551 (2017) (per curiam) (quoting Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (per curiam)).
The Supreme Court has repeatedly emphasized qualified
immunity's importance -- particularly "the longstanding principle
that 'clearly established law' should not be defined 'at a high
level of generality.'"
Id. at 552 (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011)); see also, e.g., City & County of San
Francisco v. Sheehan, 135 S. Ct. 1765, 1776 (2015) ("Qualified
immunity is no immunity at all if 'clearly established' law can
simply be defined as the right to be free from unreasonable
searches and seizures.").
We must analyze whether the law is
clearly established "in light of the specific context of the case,
not as a broad general proposition."
Hunt v. Massi, 773 F.3d 361,
367 (1st Cir. 2014) (quoting Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (per curiam)).
Graham v. Connor, 490 U.S. 386 (1989), and Tennessee v.
Garner, 471 U.S. 1 (1985), provide the "general tests" for Fourth
Amendment excessive force claims. Brosseau, 543 U.S. at 199. They
set forth three criteria for evaluating the reasonableness of force
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used: (1) "the severity of the crime at issue"; (2) "whether the
suspect poses an immediate threat to the safety of the officers or
others"; and (3) "whether [the suspect] is actively resisting
arrest or attempting to evade arrest by flight."
at 396 (citing Garner, 471 U.S. at 8–9).
Graham, 490 U.S.
Although Graham and
Garner "guide us in determining the law in many different kinds of
circumstances," those precedents are "cast at a high level of
generality" and do not necessarily establish the "clear law . . .
that would apply" to any given set of circumstances, outside of
the most "obvious case[s]."
omitted).
Brosseau, 543 U.S. at 199 (citation
As we apply the Graham factors, we must look also to
"clearly established law" that is "'particularized' to the facts
of the case."
White, 137 S. Ct. at 552 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)); accord Plumhoff v. Rickard,
134 S. Ct. 2012, 2023 (2014).
We undertake a two-step inquiry in qualified immunity
cases, asking "(1) whether the facts alleged or shown by the
plaintiff make out a violation of a constitutional right; and
(2) if so, whether the right was 'clearly established' at the time
of the defendant's alleged violation."
Stamps, 813 F.3d at 34
(quoting Mlodzinski v. Lewis, 648 F.3d 24, 32 (1st Cir. 2011)).
In this case, the jury has already found that Gikas violated
Ciolino's Fourth Amendment right to be free from excessive force.
Gikas has not challenged the sufficiency of the evidence supporting
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that verdict, either in his post-verdict motion in the district
court or before us.
As a result, we address the second prong: whether the
right that Gikas violated was "clearly established" at the time
Gikas acted.
Id. (quoting Mlodzinski, 648 F.3d at 32).
"The
second prong, in turn, has two elements: 'We ask (a) whether the
legal contours of the right in question were sufficiently clear
that a reasonable officer would have understood that what he was
doing violated the right, and (b) whether in the particular factual
context of the case, a reasonable officer would have understood
that his conduct violated the right.'"
Id. (quoting Mlodzinski,
648 F.3d at 32–33).
The first element of prong two is easily satisfied.
The
legal contours of Ciolino's right were clear and a reasonable
officer would have had "clear notice" of it.
Mlodzinski, 648 F.3d
at 33 (quoting Decotiis, 635 F.3d at 37); see also, e.g., Morelli,
552
F.3d
at
23–24
("Our
case
law
supplies
a
crystal
clear
articulation of the right . . . to be free from the use of excessive
force by an arresting officer.").
Gikas focuses his argument on
the second element of prong two: whether a reasonable officer would
have understood that Gikas's actions were unconstitutional under
the particular circumstances he confronted.
See Mlodzinski, 648
F.3d at 33; see also Decotiis, 635 F.3d at 36–37 (explaining that
the second element of prong two "requir[es] a legal determination"
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but "is highly fact specific" (quoting Estrada v. Rhode Island,
594 F.3d 56, 63 (1st Cir. 2010))).
B.
Analysis of Second Element of Second Qualified Immunity Prong
We agree with the district court that a reasonable
officer in Gikas's position "would have understood that what he
[wa]s doing violate[d]" Ciolino's Fourth Amendment right.
al-
Kidd, 563 U.S. at 741 (quoting Anderson, 483 U.S. at 640).
We review briefly three cases, each of which predates
Gikas's actions in June 2013. In our view, these precedents embody
"a robust 'consensus of cases of persuasive authority,'" id. at
742 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)), such that
a reasonable officer would have recognized "the violative nature
of [Gikas's] particular conduct," id.
Raiche v. Pietroski is most closely on point. Two police
officers, including defendant Pietroski, signaled plaintiff Raiche
to stop by using their cruiser's overhead lights when they saw him
driving a motorcycle without a helmet.
did not immediately stop.
Id.
623 F.3d at 33–34.
Raiche
When Raiche did pull over,
Pietroski ran immediately from his cruiser toward Raiche and
tackled him, taking him off the motorcycle.
Id. at 34.
later found that Pietroski had used excessive force.
A jury
Id. at 35.
"[G]iven the jury's resolution of the facts," id. at 36, we
affirmed the district court's post-verdict denial of qualified
immunity.
Id. at 35–36.
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Raiche,
like
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Ciolino,
Date Filed: 06/28/2017
disobeyed
a
police
Entry ID: 6102520
order
but
showed no inclination to resist arrest or to attempt to flee from
arrest.
See
id.
at
37.
Like
indications of dangerousness."
not
given
a
chance
to
Ciolino,
Id. at 39.
submit
he
no
Like Ciolino, he was
peacefully
significant force was used to subdue him.
"present[ed]
to
arrest
before
See id. at 39 & n.3.
And in Raiche, as here, the defendant officer had no need to make
"split-second judgments" in response to "tense, uncertain, and
rapidly evolving" circumstances.
U.S. at 396).
Id. at 39 (quoting Graham, 490
Rather, an "objectively reasonable police officer"
would have taken a more measured approach.
Id.
Morelli v. Webster and Alexis v. McDonald's Restaurants
of
Massachusetts,
Graham's
general
Inc.
further
excessive
illustrate
force
analogous to the one before us.
the
principles
application
in
a
of
situation
In Morelli, the plaintiff was
detained in a hotel corridor with force sufficient to tear her
rotator cuff, despite the fact that she had committed a minor
crime, at most, and showed no "evidence of either dangerousness or
attempted flight." 552 F.3d at 24. In Alexis, after the plaintiff
refused an officer's orders to leave a restaurant, see 67 F.3d at
345–46, the officer "suddenly and violently grabbed and pulled
[the plaintiff] bodily from the booth and across the table," id.
at 346.
In each case, viewing the record in the plaintiff's favor
at the summary judgment stage, we reversed the district court's
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of
qualified
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immunity,
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finding
the
defendant
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officer's
actions not only unconstitutional but also "outside the universe
of protected mistakes," Morelli, 552 F.3d at 24, that a reasonable
officer might have made under the circumstances.
See id. at 25;
Alexis, 67 F.3d at 353.
Seeking to persuade us that his judgment calls, even if
mistaken, were those of a reasonable officer, Gikas argues that
the scene outside the Club was so volatile that he was "forced to
make [a] split-second judgment[]," Graham, 490 U.S. at 397, about
how much force was warranted.
Gikas testified that he arrested
Ciolino in the way he did because Ciolino "was inciting the crowd,"
and so Gikas "needed to get [Ciolino] away from the crowd in order
to gain control over it."
The record before us does not support Gikas's argument
that he had to make a split-second judgment and that the atmosphere
outside the Club was so highly combustible that he had to arrest
Ciolino as he did.
The video, although it captures only 24
seconds, refutes Gikas's argument.
Notably, the video shows that
Sergeant Pickles, the officer whose dog Ciolino taunts just before
the arrest, barely reacts to Ciolino's behavior and certainly does
not treat Ciolino as a threat.
scene.
Nor do the other officers on the
And no officer on the scene testified that Ciolino was
posing an immediate threat of violence and had to be removed. Even
Gikas himself testified that he did not perceive Ciolino as an
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active threat; rather, his goal in removing Ciolino forcibly from
the sidewalk was to prevent Ciolino from having an "opportunity to
[incite] the crowd," which "could instigate a larger problem."
The cases cited by Gikas involve plainly distinguishable
circumstances. In one set of cases, the officers claiming immunity
faced much more volatile and dangerous scenes than the one Gikas
confronted, and the persons against whom force was used posed a
greater threat to the safety of the officers and others than
Ciolino did.
See, e.g., Asociación de Periodistas de P.R. v.
Mueller, 680 F.3d 70, 74–75 (1st Cir. 2012) (granting immunity
where video of incident showed a "rapid deterioration of the
situation"
and
"physical
confrontation[s]"
as
officers
were
attempting to disperse crowd); Fils v. City of Aventura, 647 F.3d
1272, 1290–91 (11th Cir. 2011) (granting immunity to officer for
slamming plaintiff to ground, where plaintiff's own testimony
indicated that "the crowd outside the club became significantly
more hostile to the police after [a co-plaintiff] was tased," and
plaintiff had taken a step toward officer, whose back was turned,
while screaming at him); Salazar v. City of New York, No. 15-cv1989 (KBF), 2016 WL 3748499, at *1 (S.D.N.Y. July 11, 2016)
(granting immunity to officers who had acted in response to a "loud
and physical . . . brawl" involving the plaintiff, adjacent to a
crowd outside a bar in midtown Manhattan); Estate of Devine v.
Fusaro, No. 3:14-cv-01019 (JAM), 2016 WL 183472, at *1-3 (D. Conn.
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Document: 00117172055
Page: 19
Date Filed: 06/28/2017
Entry ID: 6102520
Jan. 14, 2016) (granting immunity to officers for actions aimed at
ending
unpredictable
and
dangerous
standoff
with
armed
and
suicidal man), aff'd, No. 16-414-cv, 2017 WL 362685 (2d Cir. Jan.
23, 2017) (unpublished summary order).
A second set of Gikas's cases, which overlaps in part
with the first set, is distinguishable for another reason: they
involved arrestees who had physically resisted, or were actively
resisting, arrest.
See, e.g., Salazar, 2016 WL 3748499, at *2, *6
(granting immunity for pepper-spraying plaintiff who had been
"kicking and screaming" during her arrest); Brown v. City of New
York, No. 13-cv-1018 (KBF), 2016 WL 1611502, at *1–2 (S.D.N.Y.
Apr. 20, 2016) (granting immunity for pepper-spraying plaintiff
who had refused to offer her hands for handcuffing);5 Therrien v.
Town of Jay, 483 F. Supp. 2d 19, 26–27 (D. Me. 2007) (granting
immunity for forceful takedown after a lengthy car chase, in which
5
Gikas also argues that Brown stands for the principle
that "even when a jury or judge finds force excessive, where the
issue of qualified immunity is a close call, it should fall in
favor of the police officers." There is no such rule in the Second
Circuit, and certainly not in the First Circuit.
Brown merely
reiterates that if reasonable minds could disagree as to the first
prong of qualified immunity -- that is, whether there was a
constitutional violation at all -- a defendant will ordinarily be
entitled to immunity on the second prong. That language restates
the familiar principle that qualified immunity gives "a reasonable
officer . . . the benefit of a margin of error." Mlodzinski, 648
F.3d at 33 (quoting Morelli, 552 F.3d at 24).
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Case: 16-2107
Document: 00117172055
Page: 20
Date Filed: 06/28/2017
Entry ID: 6102520
arrestee ignored numerous orders to stop, was clearly intoxicated,
and generally acted in an "irrational and unpredictable fashion").6
Finally, we reject Gikas's argument that he acted in a
manner consistent with his training and police protocol when he
took Ciolino to the ground with force.
Cf. Stamps, 813 F.3d at 32
n.4 (discussing the relevance of "police training and procedures"
to a qualified immunity inquiry in an excessive force case). Gikas
testified at trial that he had been taught to employ "open-hand"
techniques to subdue arrestees who have refused to obey verbal
commands and that he used such a technique on Ciolino, rather than
a more extreme use of force, after perceiving that Ciolino had
refused police instructions to "move along" and to leave the K-9
dogs alone.
If anything, Gikas's actions appear to be contrary to
the
training
responses.
he
says
he
received
on
the
spectrum
of
police
A reasonable officer might well have laid hands on
Ciolino, either to arrest him or to remove him, but would have
used a less aggressive technique, such as seizing and securing
6
Murphy v. Palmer, brought to our attention at oral
argument, could be placed into both sets of cases. No. 14-cv-6896
(FLW) (DEA), 2017 WL 2364195 (D.N.J. May 31, 2017) (unpublished
opinion). In Murphy, a forceful arrest was held to be reasonable
because the "belligerent and noncompliant" plaintiff attempted to
retreat when told he was under arrest, "it was unclear whether
[he] posed an imminent threat to the safety of the [o]fficers,"
and "[t]he circumstances were tense and rapidly escalating." Id.
at *13.
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Case: 16-2107
Document: 00117172055
Page: 21
Date Filed: 06/28/2017
Entry ID: 6102520
Ciolino's hands, rather than taking the actions Gikas did.
The
record contains no evidence that Gikas was trained to "jump[]
immediately to the extreme end of the 'open-hand' force category,"
Raiche, 623 F.3d at 39, rather than to control Ciolino with a less
forceful technique.
Nor is there any evidence that Gikas was
trained to regard a disobeyed order to "move along" as equivalent
to a disobeyed order to submit to arrest.
Alexis, 67 F.3d at 345-46, 353.
See id. at 37–38;
Gikas gave Ciolino no warning at
all that he was under arrest before Gikas decided to use force.
We conclude, as did the district court, that Gikas's
actions not only violated Ciolino's Fourth Amendment right but
also fell outside the "margin of error," Morelli, 552 F.3d at 24,
that qualified immunity provides.
IV. Conclusion
The denial of qualified immunity and the judgment are
affirmed.
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