Bibbs v. Allen

Filing 48

ORDER Denying Plaintiff Jerry Bibbs' 46 Motion for New Trial. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY L. BIBBS,
Plaintiff,

Case No. 13-cv-10362
Hon. Matthew F. Leitman

v.
DAVID ALLEN,
Defendant.
_________________________________/
ORDER DENYING PLAINTIFF JERRY BIBBS’ MOTION
FOR NEW TRIAL (ECF #46)
Introduction
This is an excessive force case brought under 42 U.S.C. § 1983. Plaintiff
Jerry Bibbs (“Bibbs”) alleges that Defendant David Allen (“Allen”), a City of
Center Line police officer, violated his (Bibbs’) Fourth Amendment rights by
tasing Bibbs multiple times during a traffic stop in 2011. The case was tried before
a jury in December 2014, and the jury returned a verdict in Allen’s favor. Bibbs
now moves for a new trial. (See the “Motion,” ECF #46.)
At trial, Bibbs and Allen offered far different versions of the incident in
question. Bibbs testified that Allen conducted a traffic stop; ordered Bibbs out of
the car; and, before giving Bibbs an opportunity to comply with his commands,
tased Bibbs six times even though Bibbs posed no threat and was not attempting to

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flee. Allen testified that he conducted a traffic stop; ordered Bibbs out of the car;
saw Bibbs place a white substance in his mouth; believed the white substance was
a potentially lethal dose of cocaine; ordered Bibbs to spit the substance out (at least
twice); and deployed his taser in an effort to secure compliance with his “spit-itout” order only after Bibbs disregarded that order. Allen said that while he may
have pulled the trigger on his taser six times, only one of the pulls – the last one –
resulted in the delivery of a shock to Bibbs. The key issues in dispute at trial
included: (1) did Allen give Bibbs a sufficient opportunity to comply with the
“spit-it-out” order prior to first firing the taser at Bibbs; (2) did the taser deliver
multiple shocks to Bibbs or just a single shock; and (3) was Bibbs helpless and
sprawled on the ground at the time of taser shock(s), or was he attempting to crawl
away from Allen and continuing to disobey Allen’s commands?
Bibbs’ claims survived summary judgment because, at that stage, the
competing testimony on all these key disputed issues had to be viewed in Bibbs’
favor. That was obviously not the case at trial. At trial, Allen’s version of events
was amply supported by the evidence and was, in fact, more credible than Bibbs’
version. Accordingly, the jury did not commit any error in returning a verdict
against Bibbs. The Court will DENY Bibbs’ Motion.1

1

The Court deems this matter appropriate for decision without oral argument. See
Fed. R. Civ. P. 78(b); E.D. Mich. L.R. 7.1(f)(2).
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Analysis
Bibbs seeks a new trial under Rule 59(a) of the Federal Rules of Civil
Procedure on the ground that the jury’s verdict was against the great weight of the
evidence. “This Rule requires a new trial only when a jury has reached a seriously
erroneous result as evidenced by among other things the verdict being against the
weight of the evidence.

But granting a new trial on this ground is a rare

occurrence. Therefore, [a court should] uphold the verdict if it was one which the
jury reasonably could have reached; [a court] cannot set it aside simply because [it]
think[s] another result is more justified.”

Innovation Ventures, LLC v. N2G

Distributing, Inc., 763 F.3d 524, 534 (6th Cir. 2014) (internal citation and
punctuation omitted). Moreover, when reviewing a motion for a new trial, the
Court “must compare the opposing proofs and weigh the evidence.” Werner v.
Bell Family Medical Center, Inc., 529 Fed. App’x 541, 542 (6th Cir. 2013)
(quoting Duncan v. Duncan, 377 F.2d 49, 52 (6th Cir. 1967)); see also Whitehead
v. Bond, 680 F.3d 919, 928 (7th Cir. 2012) (“When considering whether the verdict
was against the manifest weight of the evidence, the district court has the power to
get a general sense of the weight of the evidence, assessing the credibility of
witnesses and the comparative strength of the facts put forth at trial”) (internal
quotation marks omitted).

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The jury in this case was instructed as follows (without objection by Bibbs):
At the time of the incident and events that were at issue
in this case, it was clearly established Fourth Amendment
law that a suspect who does not pose a threat, is not
attempting to flee, is not resisting arrest, and, if able to do
so, is complying with the officer’s orders, has a clearly
established right not to be tased.
In his Motion, Bibbs insists that the evidence at trial established that he was
tased multiple times and that at the time of these repeated tasings, he was not a
threat to Allen, was not attempting to flee, was not resisting arrest, and was not
given a sufficient opportunity to comply with the “spit-it-out” command. Bibbs
thus insists that the jury should have found that Allen used excessive force against
him.
Bibbs’ argument ignores the substantial and credible evidence presented at
trial that contradicted his theory.

There was clear trial testimony from two

witnesses that Allen did give Bibbs a sufficient opportunity to comply with the
“spit-it-out” command before deploying his taser. Angela Rowe, Bibbs’ former
girlfriend who was at the scene of the incident, testified that she heard Allen order
Bibbs to spit it out more than once before she heard Bibbs fall to the ground after
Allen first pulled the trigger on his taser. Indeed, Rowe was so concerned about
Bibbs’ non-compliance with the “spit-it-out” command that she urged Bibbs to
comply with the command before Allen deployed the taser.

Likewise, Allen

clearly testified that he ordered Bibbs “on several occasions” to spit out the white
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substance before deploying his taser, and Allen said that he expressly told Bibbs
that he (Bibbs) would be tased if he did not spit out the substance in his mouth.
(See Allen trial testimony, ECF #47-2 at 64-65, Pg. ID 885-886.)

Bibbs’

testimony diverged sharply from Allen’s and Rowe’s on this point. Bibbs testified
that Allen fired the taser without any warning and before directing him to spit out
the white substance. The jury was clearly free to accept the testimony of Allen and
Rowe (a witness called by Bibbs) that Allen gave a command and a warning before
deploying his taser. Indeed, the Court found the testimony of Rowe and Allen to
be credible on this point.
Bibbs argues that even if Allen gave him a sufficient opportunity to comply
with the “spit-it-out” command before first using the taser, Allen failed to give
Bibbs an opportunity to comply with that command prior to the next five tasings.
In Bibbs’ words, “the record establishes that (1) Allen tased Bibbs repeatedly and
within a very short period of time [(see Bibbs’ Trial Exhibit 1 and attached chart,
ECF #46-8)] as Allen was yelling at Bibbs to spit out the white substance and (2)
during this time, Bibbs was helpless on the ground with saliva spewing from his
mouth. From these facts it is far from clear that Allen gave Bibbs a sufficient
opportunity to comply with the spit-it-out command.” (Bibbs’ Motion, ECF #46 at
26-27, Pg ID 519-520.) But contrary to Bibbs’ assertion, the record did not clearly
establish that Allen successfully deployed his taser on Bibbs multiple times or that
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Bibbs was suffering from the effects of a tasing as he was on the ground hearing
Allen’s repeated commands to spit out the white substance.
Indeed, there was credible evidence that while Allen may have pulled the
trigger on his taser six times, only the final pull delivered a shock to Bibbs. Allen
and Officer William Dempsey (“Dempsey”) from the Center Line Police
Department, a certified taser instructor (see Dempsey trial testimony, ECF #47-3 at
68, Pg. ID 900), explained that trigger pulls do not always result in the delivery of
a shock. Allen and Dempsey testified that when a taser is used in “dart stun” mode
– in which two darts are shot into a suspect’s skin or clothing – a trigger pull will
result in the delivery of a shock only if both of darts successfully attach to the
suspect or to his clothing (and the clothing is sufficiently close to the skin) which
completes the electrical circuit needed to deliver a shock. (See, e.g, id. at 71, 76,
Pg. ID 901-902.) Allen testified that the taser was in “dart stun” mode the first
four times he pulled the trigger, and that the darts could not have successfully
attached to Bibbs because Bibbs was not reacting in the way that a person would
react when successfully shocked by a taser. (See Allen trial testimony at 71-72,
Pg. ID 900-901.) Officer Dempsey’s testimony further supports Allen’s claim that
the first four trigger pulls did not deliver a shock to Bibbs. Dempsey testified that
when he arrived at the scene, he observed and spoke with Bibbs, and Bibbs’

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behavior was not “consistent with someone who had been tased five times.”
(Dempsey trial testimony at 27, Pg. ID 906.)
Finally, Bibbs’ own testimony supports Allen’s claim that the first four
trigger pulls did not deliver a shock. Officer Dempsey explained that a taser makes
a “clicking” noise when the trigger is being pulled but a shock is not being
delivered (see id. at 89-90, Pg. ID 908-909), and Bibbs testified that he heard that
precise sound during the alleged repeated tasings.2 This evidence was more than
sufficient for a jury to credit Allen’s assertion that the first four trigger pulls failed
to deliver any shocks to Bibbs.
Allen’s final two trigger pulls occurred while he had the taser in “drive stun”
mode – in which the taser is placed directly onto the skin or clothing of a suspect.
There was evidence presented at trial to support Allen’s claim that only the second
of these pulls delivered a shock to Bibbs. Allen testified that he first attempted a
“drive stun” to the Bibbs’ “[r]ight buttocks area.” (Allen trial testimony at 73, Pg.
ID 892.) But Allen testified that after this attempt, Bibbs continued to move away
2

Allen testified that he did not hear the clicking sound. (Allen trial testimony at
79-80, Pg. ID 895-896.) Bibbs insists that that testimony confirms that the taser
must have been delivering a shock during the first four trigger pulls. (See Bibbs
Motion at 20, Pg. ID 513.) Not so. It is possible that the taser was making the
clicking sound and that Allen simply did not hear that sound in the “heat” of his
interaction with Bibbs – during which he was screaming commands at Bibbs.
While the fact that Allen did not hear the clicking sound may support Bibbs’
argument that the taser was delivering shocks during the first four trigger pulls,
that fact did not compel the jury to disregard the substantial other evidence –
described above – that indicated that the first four pulls did not deliver a shock.
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from him and did not “respond in the way [Allen] would expect somebody to
respond if the taser was effective.” (Id. at 73-74, Pg. ID 892-893.) Allen testified
that at that point, he applied a second “drive stun” to Bibbs’ “shoulder area.” (Id.
at 74, Pg. ID 893.) Allen said that it was then, for the first time, that the taser
successfully delivered a shock to Bibbs. (See id. at 74-75, Pg. ID 893-894.) In
short, there was more than sufficient evidence presented at trial to rebut Bibbs’
claims that Allen shocked him six times with his taser and that the repeated alleged
tasings prevented Bibbs from complying with the “spit-it-out” command.
Allen’s testimony, which the Court found to be very credible, persuasively
established that Allen’s actions were objectively reasonable during his encounter
with Bibbs. See Graham v. Connor, 490 U.S. 386 (1989). The jury reasonably
chose to credit Allen’s testimony that Bibbs repeatedly ignored Allen’s pre-tasing
commands and that Allen’s first five attempts to deploy his taser and stun Bibbs
were unsuccessful. Bibbs is therefore not entitled to a new trial on the ground that
the jury adopted Allen’s version of events.
Bibbs’ final argument is based upon his counsel’s interactions with jurors
after they returned their verdict. Bibbs’ counsel says that his communications with
the jurors show that “the Jury simply was not listening.” (Bibbs’ Motion at 28, Pg.
ID 521.) This argument is both wrong and inappropriate. The Court observed the
jury throughout the trial. The jurors carefully listened to all of the testimony and
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arguments in this case, and they returned an eminently reasonable verdict. Indeed,
the Court would have reached the very same conclusion as the jury if this case had
been tried to the Court. Moreover, the Court allowed counsel to speak to the jurors
as a courtesy to counsel – as a means to assess which arguments worked well,
which tactics were successful, and how their presentations could be improved in
future trials. The Court did not allow counsel to speak with the jurors to provide
an opportunity to gather support for an attack on their verdict. Indeed, Rule 606(b)
of the Federal Rules of Evidence expressly precludes jurors from providing
testimony in connection with “an inquiry into the validity of a verdict.”3 See also
Warger v. Shauers, 135 S.Ct. 521 (2014) (explaining that FRE 606(b)(1) is a broad
proscription against the use of juror testimony in connection with an inquiry into a
verdict). This is yet another reason that Bibbs’ unfair attack on the jurors in this
case – based upon their own words – does not entitle Bibbs to a new trial.
Conclusion
Accordingly, for all of the reasons stated above, Bibbs’ Motion for New
Trial (ECF #46) is DENIED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: February 4, 2015

3

There are limited exceptions to this rule not applicable here. See FRE 606(b)(2).
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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on February 4, 2015, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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