Castillo v. Hille

Filing 126

MEMORANDUM OPINION AND ORDER by District Judge David H. Urias DENYING 102 Second MOTION for Judgment as a Matter of Law . (arp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOE CASTILLO,
Plaintiff,
v.

No. 1:21-cv-00258-DHU-KK

RUDY HILLE,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Rudy Hille’s Motion for Judgment as a Matter
of Law II: Seeking a Judgment of Dismissal Based on Qualified Immunity. Doc. 102. Having
considered the motion and related briefing, the Court concludes that Defendant’s Fed. R. Civ. P.
50(b) motion will be DENIED.
I. BACKGROUND
Familiarity with the disputed facts of this case is presumed. In summary, Plaintiff Joe
Castillo brought a claim alleging that Defendant Rudy Hille violated his Fourth Amendment right
to be free from unreasonable search and seizure by using excessive force when Defendant
continuously tased Plaintiff after he was subdued. Doc. 1-2. Upon completion of discovery,
Defendant moved for summary judgment, asserting the defense of qualified immunity. Doc. 49.
The Court denied Defendant’s Motion for Summary Judgement for Dismissal of Excessive Force
Claim. Docs. 79, 94. Plaintiff’s excessive-force claim was tried to a jury beginning on April 10,
2023.
On April 11, 2023, at the close of Plaintiff’s case, Defendant presented three oral motions
under Fed. R. Civ. P. 50(a). See Tr. Vol. 2, 330:11-25–350:1-8, Doc. 96. Defendant challenged the

sufficiency of the evidence based on 1) a qualified immunity defense, 2) sufficiency of the
evidence regarding excessive force, and 3) punitive damages. See id. On April 13, 2023, after
Defendant rested, Defendant again made three oral Rule 50(a) motions. See Tr. Vol. 4, 686:9-25–
703, Doc. 98. Defendant’s motions challenged the sufficiency of the evidence based on 1) a
qualified immunity defense, 2) punitive damages and future damages, and 3) a new Rule 50(a)
motion on grounds of causation. See id. Defendant’s motions were all denied, and the case was
sent to the jury. Following the five-day trial, the jury returned a verdict in favor of Plaintiff and
against Defendant and awarded Plaintiff $180,000 in damages. Doc. 100.
In the current motion now before the Court—one of several post-verdict motions filed by
Defendant—Defendant argues the jury’s verdict should be overturned because Defendant is
entitled to qualified immunity on Plaintiff’s excessive force claim. Defendant’s argument is
essentially that the trial evidence failed to establish that Defendant’s use of force against Plaintiff
was objectively unreasonable under Graham v. Connor, 490 U.S. 386, 396 (1989) (setting forth
objective reasonableness inquiry). Defendant further argues that Plaintiff failed to show a violation
of a clearly established right because as of “March 4, 2018, no Tenth Circuit opinion or US
Supreme Court opinion had held that it was unconstitutional for an officer to repeatedly use a taser
under the specific facts of this case[.]” Doc. 102 at 18–9.
Plaintiff opposes the motion on two grounds. First, he argues that a “Rule 50 Motion is
unavailable on the issue of Qualified Immunity because the issue of Qualified Immunity was not
put to the jury[.]” Doc. 111 at 1. Second, Plaintiff argues that “[e]ven if the issue of Qualified
Immunity had been put to the jury … the evidence at trial was sufficient to support [the] jury[’s]
verdict.” Id. The Court will present additional facts and arguments as needed in the sections that
follow.

2

II. LEGAL STANDARD
A court should enter judgment as a matter of law when “a party has been fully heard on an
issue and there is no legally sufficient evidentiary basis for a reasonable person to find for that
party on that issue.” Fed. R. Civ. P. 50(a). In reviewing a Rule 50 motion, the court must view the
evidence and the inferences in the light most favorable to the nonmoving party. Tyler v. RE/MAX
Mountain States, Inc., 232 F.3d 808, 812 (10th Cir. 2000). The court cannot weigh evidence, judge
witness credibility, or challenge the factual conclusions of the jury, Greene v. Safeway Stores, 98
F.3d 554, 557 (10th Cir. 1996), because “it is the sole province of the jury to appraise credibility,
draw inferences, determine the weight to be given testimony and to resolve conflicts in the facts.”
Stroup v. United Airlines, Inc., 26 F.4th 1147, 1156 (10th Cir. 2022) (citation and quotations
omitted); Webco Indus., Inc. v. Thermatool Corp., 278 F.3d 1120, 1128 (10th Cir. 2002) (“We do
not retry issues, second guess the jury’s decision-making, or assess the credibility of witnesses and
determine the weight to be given their testimony”).
Judgment as a matter of law is appropriate “only if the proof is all one way or so
overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion.”
Wilson v. Schlumberger Tech. Corp., 80 F.4th 1170, 1180 (10th Cir. 2023) (citation omitted). The
controlling question is whether the plaintiff has arguably proven a legally sufficient claim. Bay v.
Anadarko E&P Onshore LLC, 73 F.4th 1207, 1215 (10th Cir. 2023). “The quantum of evidence
necessary to defeat a JMOL motion is slight, such that justifying the grant of a JMOL motion is
difficult in practice.” Stroup, 26 F.4th at 1156–57. In reviewing a Rule 50 motion, the court
determines only whether the jury verdict is supported by substantial evidence. Webco Indus., 278
F.3d at 1128. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept

3

as adequate to support a conclusion, even if different conclusions also might be supported by the
evidence.” Id.
Because granting a motion for judgment as a matter of law deprives a party of a
determination of the facts by a jury, Greene, 98 F.3d at 560, a Rule 50 motion “should be cautiously
and sparingly granted.” E.E.O.C. v. Prudential Fed. Sav. & Loan Assoc., 763 F.2d 1166, 1171
(10th Cir. 1985). Granting a Rule 50 motion is proper “only when the court is certain the evidence
conclusively favors one party such that reasonable [people] could not arrive at a contrary verdict.”
Stroup, 26 F.4th at 1157 (quoting Mountain Dudes v. Split Rock Holdings, Inc., 946 F.3d 1122,
1130 (10th Cir. 2019)); Greene, 98 F.3d at 557 (“Unless the proof is all one way or so
overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion …
judgment as a matter of law is improper”).
III. DISCUSSION
Excessive Force Claim
The Fourth Amendment guarantees citizens the right “to be secure in their persons …
against unreasonable … seizures.” U.S. Const. amend. IV. An individual defendant sued under 42
U.S.C. § 1983 “may raise a defense of qualified immunity, which shields public officials from
damages actions unless their conduct was unreasonable in light of clearly established law.” T.D.
v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017). “Once an individual defendant asserts qualified
immunity, the plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated
a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the
time of the defendant’s unlawful conduct.” Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016)
(quotation marks omitted).

4

1) Constitutional Violation
In the context of a qualified immunity defense to an excessive force claim, the plaintiff
must show that (1) a “seizure” occurred and (2) the seizure was “unreasonable.” Bella v.
Chamberlain, 24 F.3d 1251, 1255 (10th Cir. 1994) (quoting Brower v. County of Inyo, 489 U.S.
593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)). 1 “In Graham the Supreme Court noted three
nonexclusive factors for determining whether a particular use of force was excessive: (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 he is actively resisting arrest or attempting to evade arrest
by flight.’” Est. of Valverde v. Dodge, 967 F.3d 1049, 1060 (10th Cir. 2020) (quoting Graham,
490 U.S. at 396).
As explained below, the Court finds each of these factors weighs in favor of upholding the
jury’s verdict.
a. Severity of the Crime
Defendant argues that he had probable cause that Plaintiff committed two felonies during
the encounter. First, Defendant argues that Plaintiff bit him during the struggle, which constituted
Aggravated Battery Upon a Police Officer. Second, Defendant argues that Plaintiff struck Officer
Hawkins in the face, which constituted Battery Upon a Peace Officer. The Court will separately
examine the evidence and arguments concerning each of these incidents.
Beginning with the biting incident, there was conflicting evidence before the jury whether
Plaintiff did in fact bite Defendant. In his Rule 50 motion, Defendant relies on three pieces of trial
evidence to establish that Plaintiff bit him: (1) his testimony that Plaintiff bit him. See Tr. Vol. 2,

The use of a taser on a person is a “seizure.” See Cavanaugh v. Woods Cross City, 625 F.3d
661, 665 (10th Cir. 2010). The parties do not dispute that Plaintiff was seized.
1

5

251:6-7, Doc. 96 (“Q. Okay. And at this point Mr. Castillo bites you, correct? A. Yes”); (2) the
testimony of Celeste Gonzales, an Allsup’s gas station worker testified that she witnessed Plaintiff
bite Defendant, see Tr. Vol. 3, 571:21-24, Doc. 97 (“A. I observed Joe Castillo trying to get away
and try and bite the officer. Q. You observed Joe Castillo bite Rudy Hille? A. Yes, ma’am”); and
(3) the testimony of Emergency Medical Technician (“EMT”) John Moody, who testified that he
treated Defendant for a bite after the encounter, see id. at 558:18-19 (“Q. What did you treat him
for? A. He had a bite as well as a little laceration on the hand”).
However, Plaintiff testified that he did not bite Defendant. See Tr. Vol. 1, 38:9-10, Doc. 95
(“Q. Did you bite him? A. No”). Importantly, the Court must draw inferences in Plaintiff’s favor,
“even if different conclusions also might be supported by the evidence.” Webco Indus., 278 F.3d
at 1128. The Court therefore assumes that Plaintiff did not bite Defendant. And other evidence
gave the jury a basis to discredit Defendant’s version of events. For example, Defendant made
inconsistent statements about the location of the alleged bite. In a post-incident statement made in
the aftermath of the encounter, Defendant reported that Plaintiff bit him on his left arm. See Pl.’s
Trial Ex. 1, 16:32-36 (video evidence of Defendant pointing to his left arm and stating, “I think he
bit me right here”). But at trial Defendant testified that Plaintiff bit him on his right arm. See Tr.
Vol. 3, 422:3-6, Doc. 97 (“Q. Okay. And what’s the picture on the right? A. It’s an injury of a bite
mark on my right arm. Q. Is that your right arm? A. My forearm”).
Drawing all inferences in Plaintiff’s favor, as the Court must, Plaintiff’s evidence therefore
shows that he did not bite Defendant. Also drawing inferences in Plaintiff’s favor, the evidence
shows that Defendant made inconsistent statements about the location of the bite, which gave the
jury a reasonable basis to infer that Defendant used the alleged biting incident as a pretext to
“justify the increased use of force on [Plaintiff],” as Plaintiff argues. Doc. 111 at 4. In summary,

6

the trial evidence does not “conclusively” favor Defendant. Stroup, 26 F.4th at 1157 (explaining
that a Rule 50 motion is proper “only when the court is certain the evidence conclusively favors
one party such that reasonable [people] could not arrive at a contrary verdict”). Thus, there was
substantial evidence for the jury to conclude that probable cause was lacking for the crime of
Aggravated Battery Upon a Police Officer.
Similarly, there was conflicting evidence as to whether Plaintiff committed Battery Upon
a Police Officer by allegedly striking Officer Hawkins in the face. In his Rule 50 motion,
Defendant relies on his own testimony that he personally observed Plaintiff hit Officer Hawkins,
see Tr. Vol. 2 at 254:1-2 (“Q. Now, you actually observed Mr. Castillo hit Officer Hawkins in the
face; isn’t that right.? A. Yes”), and Officer Hawkins’ testimony that Plaintiff struck him. See Tr.
Vol. 3 at 504:9-11; 16-17 (“Q. What did Joe Castillo do? A. When I was pushing his jaw, his face
away from me, his hand went up and hit me in the face... Q. Okay. At that moment, did you
perceive a threat? A. Yes”). In addition to this testimonial evidence, Defendant points to video
evidence allegedly showing Plaintiff’s “right hand … hit[ting] Officer Hawkins in the face”
roughly thirty seconds into the struggle between the two men. Doc. 102 at 10 (citing Pl.’s Trial
Ex. 1 at 0:12:33–0:12:36).
However, as Plaintiff correctly points out, Battery Upon a Police Officer requires intent.
See N.M. Stat. Ann. § 30–22–24 (“Battery upon a peace officer is the unlawful, intentional
touching or application of force to the person of a peace officer while he is in the lawful discharge
of his duties, when done in a rude, insolent or angry manner”) (emphasis added). Plaintiff testified,
and the Court credits as true, that he struck Officer Hawkins accidentally, not intentionally. See
Tr. Vol. 2 at 180:19-21 (“It was more like a struggle, like I’m trying to move my hand. It wasn’t
an intentional hit. … I don’t think nobody can intentional hit anybody like that”); id. at 181:8-11

7

(“[I]t was an accident. It was a struggle. You’re going through it. I was freaking out. His hand goes
up. It wasn’t like I intentionally balled up my fist and hit Officer Hawkins”). The jury heard the
officers’ testimony, Plaintiff’s testimony, and viewed video evidence of the encounter. In weighing
this evidence, the jury was “entitled to credit [Plaintiff]’s testimony that [the strike] was not
intentional but a mere reflex based on what [Officer] Hawkins was doing to [Plaintiff’s] arm at the
time,” as Plaintiff argues. Doc. 111 at 5. See Webco Indus., 278 F.3d at 1128 (a court assessing a
Rule 50 motion “do[es] not retry issues, second guess the jury’s decision-making, or assess the
credibility of witnesses and determine the weight to be given their testimony”). Because there was
substantial evidence for the jury to conclude that probable cause was lacking for the crime of
Battery Upon a Police Officer, the Court will not overturn the jury’s verdict on the issue.
In summary, the first Graham factor weighs in favor of upholding the jury’s verdict.
b. Whether Plaintiff posed an immediate threat to the safety of the officers
The second Graham factor is “whether the suspect poses an immediate threat to the safety
of the officers or others.” Graham, 490 U.S. at 396. Defendant, relying on video evidence and
Plaintiff’s testimony, argues that Plaintiff—not the officers—initiated the encounter by pushing
Defendant’s hand away when Defendant attempted to restrain him. See Doc. 102 at 20 (citing Pl.’s
Trial Ex. 1 at 0:12:02–0:12:03 (Officer Hille’s lapel camera); Pl.’s Trial Ex. 2, 0:7:25–0:7:26
(Officer Hawkins’ lapel camera); Tr. Vol. 2 at 141:25; 142:1-3 (Plaintiff’s testimony)). Defendant
testified that before Plaintiff allegedly bit him, Defendant had used only “hands-on” force, showing
that Defendant started with minimal force, according to Defendant. Tr. Vol. 3 at 392:3-5.
In addition to this evidence, Defendant again points to the previously mentioned evidence
that Plaintiff allegedly bit Defendant (which Defendant argues is corroborated by Celeste
Gonzales’ and EMT John Moody’s testimony), and that Plaintiff threw a punch at Officer

8

Hawkins. Defendant also points to the officers’ testimony about Plaintiff’s “unusual strength.” Id
(citing Tr. Vol. 2 at 247:9-13 (Defendant’s testimony that “after we fell down outside of the
Allsup’s, I knew that Officer Hawkins and I wouldn’t be able to physically restrain Joe because he
was very strong”); Tr. Vol. 3 at 499:23-25 (Officer Hawkin’s testimony that “that was one of most
difficult times I’ve ever had in my 16 years of getting someone cuffed up. That’s one of the most
difficult times I’ve ever had”)). Defendant also cites his testimony that even after the final tase, it
took both about nineteen seconds to place Plaintiff in handcuffs. See id. (citing Tr. Vol. 3 at 479:14). Finally, Defendant cites Ms. Gonzales’ testimony that she “want[ed] to press [a] panic button”
under the counter “because [she] felt like the officers needed help.” Tr. Vol. 3 at 576:7; 10.
Defendant argues that this evidence shows that “Graham factor number two weighs in [his] favor.”
Doc. 102 at 21.
The Court concludes that Plaintiff has put forward the requisite “slight evidence” on the
second Graham factor to defeat Defendant’s Rule 50 motion. See United States ex rel. Barrick v.
Parker-Migliorini Int’l, LLC, 79 F.4th 1262, 1271 (10th Cir. 2023) (“Only slight evidence in favor
of the non-movant is required to defeat a [Rule 50] motion”). First, as Plaintiff correctly notes,
after Defendant first tased Plaintiff, Defendant’s subsequent commands shifted from statements
like “stop fighting”—indicating that Plaintiff posed a threat—to “put your hands behind your
back”—indicating that the threat was neutralized or had at least lessened. Doc. 111 at 5 (citing
Pl.’s Trial Ex. 1 at 0:12:50—0:30:48). The jury could infer that Defendant’s change in instructions
indicates that Defendant knew Plaintiff had stopped resisting and yet Defendant continued to tase
Plaintiff. Second, the Court credits Plaintiff’s version of events that he was attempting to comply
with Defendant’s command to put his hands behind his back, but this was impossible because
Plaintiff was pinned beneath Officer Hawkins. Finally, the jury could reasonably find that

9

Plaintiff’s many pleading statements—“Help!” Okay, Okay Okay” “Ayyyy!” “They’re killing
me!”—indicated that Plaintiff did not pose an immediate threat. See Wilkins v. City of Tulsa,
Oklahoma, 33 F.4th 1265, 1274 (10th Cir. 2022) (suspect’s statements like “please, man,” “you’re
breaking my f---ing wrists,” and “I’m not doing nothing to you” indicated that he did not pose a
threat to officers).
In summary, the second Graham factor weighs in favor of upholding the jury’s verdict.
c. Whether Plaintiff Actively Resisted Arrest or Attempted to Flee
The third Graham factor is “whether [the person] is actively resisting arrest or attempting
to evade arrest by flight.” Graham, 490 U.S. at 396. Courts “consider any resistance during the
suspect’s encounter with officers.” Wilkins, 33 F.4th at 1273. That said, “a suspect’s initial
resistance does not justify the continuation of force once the resistance ceases.” Id.
To support this factor, Defendant relies on much of the same evidence that has already
been previously mentioned. For example, Defendant reiterates that Plaintiff allegedly bit
Defendant, threw a punch at Officer Hawkins, and tried to bite Officer Hawkins as well. Defendant
also argues that throughout the struggle Plaintiff allegedly “refuse[d] to allow officers to place him
in handcuffs.” Doc. 102 at 21. And, according to Defendant, “following the final taser deployment,
Plaintiff still refused to allow officers to place him in handcuffs.” Id. In his reply brief, Defendant
also argues that it is apparent Plaintiff was resisting Officer Hawkins’ attempts to subdue Plaintiff
because Plaintiff was spinning his body underneath Officer Hawkins. See Doc. 118, 5.
With this view of the facts as such, Defendant argues that this case resembles Hinton v.
City of Elwood, Kan., 997 F.2d 774 (10th Cir. 1993). In Hinton, the plaintiff, Hinton, shoved an
officer, prompting two police officers “pushed Hinton to the ground where they attempted to
handcuff him.” Id. at 777. Undeterred, the plaintiff “continued to struggle with [the two officers]

10

by kicking his feet, flailing his arms, and biting the officers.” Id. One officer “eventually used an
electrical stun gun to subdue Hinton.” Id. Although the Tenth Circuit held that the first and second
Graham factors favored the plaintiff, the court treated the third factor as dispositive, and held the
officers’ use of force was objectively reasonable under the circumstances. Id. at 781–82.
But there are key differences between Hinton and this case. Importantly, in Hinton, the
plaintiff “admit[ed] … that he was actively and openly resisting [the officers’] attempts to handcuff
him, even to the extent of biting the officers.” Id. at 781. In addition, the plaintiff’s own police
conduct expert testified that the officers acted appropriately. See id. Here, in contrast, Plaintiff has
made no similar admission. 2 As previously explained, the Court credits Plaintiff’s version of
events that he did not bite Defendant or intentionally strike Officer Hawkins. And unlike the
plaintiff in Hinton, Plaintiff maintains that he tried to comply with police commands to put his
hands behind his back, but was unable to do so because Officer Hawkins was pinned on top of
him. Finally, there was no expert testimony for the jury to consider, as was the case in Hinton.
Therefore, Hinton is factually and procedurally distinguishable. The Court concludes that the third
Graham factor weighs in favor of upholding the jury’s verdict.
In summary, all the other evidence before the jury, construed in the light most favorable to
Plaintiff, shows that that there was substantial evidence to support the jury’s verdict that
Defendant’s use of force was excessive under Graham. Because there was a “legally sufficient

Defendant argues that Plaintiff did in fact “admit[]” during trial “that he did not stop resisting
….” Doc. 102 at 15. But in the cited portions of Plaintiff’s testimony, Plaintiff elaborated that
“even if I stopped, they were still going, even if I would have stopped,” and he explained that he
“didn’t even know what … was … happening to [him].” Tr. Vol. 2 at 9-10; 12-13. Although
Defendant describes this testimony as an “admi[ssion] that [Plaintiff] was resisting,” Doc. 102 at
22, a reasonable jury could draw a different factual conclusion from this testimony.
2

11

evidentiary basis for a reasonable person to find for [Plaintiff] on that issue,” Fed. R. Civ. P. 50(a),
Defendant’s Rule 50 motion is denied.
2) Clearly Established Law
Having determined Plaintiff’s trial evidence could have established a violation of a
constitutional right, the next question is whether that right was clearly established at the time the
conduct occurred. See Gutierrez, 841 F.3d at 900. “To be clearly established, ordinarily there must
be prior Supreme Court or Tenth Circuit precedent, or the weight of authority from other circuits,
that would have put an objective officer in [defendant]’s position on notice that he was violating
[plaintiff]’s Fourth Amendment rights.” Emmett v. Armstrong, 973 F.3d 1127, 1137 (10th Cir.
2020) (alterations in original) (quotation marks omitted).
The parties focus on a single case, Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016). As
explained more below, Perea is an analogous case that makes clear that as of 2018 “continued use
of force after an individual has been subdued is a violation of the Fourth Amendment.” Id. at 1205.
In Perea, two Albuquerque Police Department officers performed a welfare check in
response to calls that the suspect was on “very bad drugs” and pacing in his yard. Id. at 1201. The
officers were told they were responding to a verbal fight and that no weapons were involved. Id.
Officers saw the suspect on a bicycle. Id. Once he recognized the police, the suspect pedaled faster
and ran through a stop sign, a minor crime. Id. at 1201, 1203. A foot chase ensued and one of the
officers pushed the suspect off his bicycle, without telling him why police were following him or
telling him to halt or stop. Id. at 1201.
The officers tried to detain the suspect, but he “struggled and thrashed while holding a
crucifix.” Id. One of the officers tasered the suspect ten times in two minutes. “At some point
before the taserings stopped, [the officers] were able to get [the suspect] on the ground on his

12

stomach, with both officers on top of him, effectively subduing him.” Id. Applying the Graham
factors, the Tenth Circuit explained that the first factor (severity of the crime) justified only
“minimal force” because the suspect’s crime was minor. Id. at 1202–03. The second factor (the
threat to officers) weighed in the suspect’s favor because the officer never claimed to be threated.
Id. at 1203. The third factor (resisting arrest) justified “some” force “during the period in which
[the suspect] was resisting.” Id. However, the suspect’s “resistance (thrashing and swinging a
crucifix) did not justify the officers’ severe response” because “[e]ven if [the suspect] initially
posed a threat to the officers that justified tasering him, the justification disappeared when [he]
was under the officers’ control.” Id. at 1203–04. The court ruled that it was “clearly established
that officers may not continue to use force against a suspect who is effectively subdued.” Id. at
1204.
Defendant argues that the facts of Perea are “vastly different” from the current case. Doc.
102 at 26. According to Defendant, unlike the suspect in Perea who committed minor crimes and
posed no threat to officers, Plaintiff allegedly was the initial aggressor and officers believed he
had a warrant. In addition, Defendant argues that he refrained from using his taser “until … he had
probable cause that two felonies had been committed by Plaintiff,” compared to the officers in
Perea who started the encounter by pushing the plaintiff off his bicycle without an explanation.
Doc. 102 at 24.
Defendant also argues that Plaintiff was not subdued like the plaintiff in Perea. According
to Defendant, the unconstitutional tasings in Perea occurred after “the officers pushed [the suspect]
to the ground with his arms under body” with “[o]ne officer … on the upper part of [the suspect’s]
body while the second officer was on his legs.” Id. at 26 (citation and quotation marks omitted).
According to Defendant, unlike the suspect in Perea, Plaintiff “was on his back—not prone with

13

his hands pinned underneath him,” suggesting that Plaintiff could still put up a fight. Id. at 27.
Defendant argues that Plaintiff was subdued only when “he was placed in handcuffs”; until that
point “Plaintiff continued to actively resist and fight with officers.” Id.
However, Defendant’s arguments once again presume his version of the facts, not
Plaintiff’s, which the Court must accept in reviewing a Rule 50 motion. See Tyler, 232 F.3d at 812.
Under the correct view of the facts, Plaintiff did not bite Defendant or intentionally throw a punch
at Officer Hawkins. Furthermore, there was a factual dispute about whether Plaintiff’s physical
response during the encounter constituted resisting arrest or reflexive reactions. Crediting
Plaintiff’s evidence, Plaintiff was attempting comply with Defendant’s command to put his hands
behind his back but was unable to do so because Officer Hawkins was controlling his hands.
Plaintiff also made several pleading statements to officers, which the jury could find indicated that
Plaintiff did not pose a threat officers. All the other evidence before the jury, construed in
Plaintiff’s favor, shows the jury reasonably found for Plaintiff. Under Plaintiff’s version of events,
clearly established law put Defendant on notice that “continued use of force after an individual has
been subdued is a violation of the Fourth Amendment.” Perea. at 1205.
In summary, the Court rejects Defendant’s qualified immunity defense on excessive force
and concludes that his motion will be denied.
IV. CONCLUSION
For the reasons stated herein, it is therefore ORDERED that Defendant Rudy Hille’s
Motion for Judgment as a Matter of Law II: Seeking a Judgment of Dismissal Based on Qualified
Immunity (Doc. 102) is DENIED.
IT IS SO ORDERED.

14

_______________________________
HON. DAVID HERRERA URIAS
UNITED STATES DISTRICT JUDGE

15