Raiche v. Pietroski, (1st Cir. 2010)
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United States Court of Appeals
For the First Circuit
No. 09-1910
MATTHEW RAICHE,
Plaintiff, Appellee,
v.
JAMIE PIETROSKI,
Defendant, Appellant,
JAMES COYNE,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert B. Collings, U.S. Magistrate Judge]
Before
Thompson, Selya, and Dyk,
[1]
Circuit Judges.
Evan C. Ouellette, Assistant Corporation Counsel, with whom
William F. Sinnot, Corporation Counsel, was on brief, for
appellant.
Rudolph F. Miller, with whom Gabriela Mendoza was on brief,
for appellee.
October 25, 2010
THOMPSON, Circuit Judge. Officer Jamie Pietroski
suffered a late-night lapse in judgment and forcibly removed a
compliant Matthew Raiche from his stopped motorcycle in order to
arrest Raiche for, ironically, failure to stop. A jury saw the
irony and, after a trial on a number of related civil rights
claims, awarded Raiche damages for injuries sustained as a result
of Pietroski's use of excessive force. Pietroski filed post-trial
motions (1) for judgment as a matter of law on the ground that he
was entitled to qualified immunity because he had acted reasonably,
and (2) for a new trial on the ground that the jury's verdict was
not supported by the evidence. The district court denied
Pietroski's motions and entered judgment for Raiche.
Pietroski now appeals the district court's denial of his
post-trial motions and challenges the validity of the jury verdict
on the basis that the evidence does not support a finding of
excessive force. After careful review of the record, we agree with
the district court that the evidence supports a finding that
Pietroski acted unreasonably and may not avail himself of qualified
immunity's protection. We affirm.
I. Background
A. Facts
The parties present very different versions of the events
that culminated in the arrest of Raiche at 2:50 A.M. on Saturday,
August 17, 2002.
According to Boston Police Officers Pietroski and James
Coyne, they were inside their marked police cruiser parked on
Brigham Circle, in Roxbury, MA, when they spotted Raiche driving
his motorcycle without a helmet in violation of Mass. Gen. Laws ch.
90, § 7. The officers testified that they pursued Raiche in their
cruiser and signaled for him to stop, using the cruiser's overhead
lights. They then testified that, rather than pulling over, Raiche
led them on a chase, speeding and going the wrong way down one-way
streets. Under the officers' version of events, Raiche only
stopped when he negotiated a turn poorly and his motorcycle got
stuck between a parked vehicle and the curb of the sidewalk.
Raiche testified that no pursuit occurred as far as he
could tell, and as soon as he had the opportunity to stop safely
after he saw the cruiser's flashing lights, he pulled over in the
belief that the police wanted to pass him. According to Raiche, he
pulled over behind a parked vehicle, shut off his motorcycle's
engine, and "bounced" the motorcycle between his legs as he waited
15-20 seconds for the police to pass. Instead of passing him,
however, the cruiser skidded to a stop at an angle behind him.
The next thing he knew, he was being tackled off his bike.
Pietroski testified that he exited the cruiser and ran at
Raiche, shouting that he was a Boston Police Officer and
instructing Raiche to get down on the ground and show his hands.
However, both Raiche and Coyne testified that they did not hear
Pietroski identify himself or give Raiche any instructions. In any
event, Pietroski reached Raiche within seconds, grabbed him by his
shoulders, and either "physically lift[ed] him off [his] bike and
tr[ied] to pull him as far away from that bike" as possible (under
Pietroski's version) or launched himself in the air and tackled
Raiche, football-style, to the ground (under Raiche's version).
Raiche's forehead struck the sidewalk, and the motorcycle landed on
top of his right leg. The force of Pietroski's takedown also
caused the motorcycle's handlebars and forks to bend and suffer
irreparable damage.
Pietroski then pulled up on Raiche's left arm to apply
handcuffs, twisting Raiche, who was still tangled up with the
motorcycle. According to Raiche, he asked, "Please, can you ease
up on my left arm? It comes out of socket." Raiche testified that
his left shoulder was partially dislocated during the handcuffing
process. Also while handcuffing Raiche, Pietroski put his knee on
the small of Raiche's back, which caused Raiche's head to hit the
pavement a second time.
As a result of the force used to make the arrest,
Raiche's motorcycle was rendered a total loss. In addition to the
temporarily dislocated shoulder, Raiche received cuts and abrasions
that did not require medical attention. Raiche submitted
photographs showing cuts on his face, on his right arm, on his
right knee, and on the back of his left leg.
Raiche was charged with the criminal offense of "failure
to stop for police officer" in violation of Mass. Gen. Laws ch. 90,
§ 25.
B. Procedural History
On May 5, 2006, Raiche filed suit against Officers
Pietroski and Coyne in the United States District Court for the
District of Massachusetts. Raiche asserted civil rights claims
under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act,
Mass. Gen. Laws ch. 12, §§ 11H & I (MCRA), alleging that his arrest
had been effected without probable cause and by means of excessive
force. Raiche also asserted common law claims alleging false
imprisonment and assault and battery.
A jury trial began on January 12, 2009. At the close of
Raiche's evidence, the officers filed a motion for judgment as a
matter of law based on, inter alia, qualified immunity, and the
officers renewed the motion at the close of all evidence pursuant
to Rule 50 of the Federal Rules of Civil Procedure. The district
court denied both motions without written findings or opinion.
On January 16, 2009, the jury returned verdicts in favor
of (1) Coyne on all claims against him, (2) Pietroski on the claims
asserting arrest without probable cause (§ 1983, MCRA, and false
imprisonment), and (3) Raiche on claims alleging that Pietroski
used excessive force to make the arrest (§ 1983, MCRA, and assault
and battery). The jury awarded Raiche $2,500 in compensatory
damages but did not award punitive damages. On May 19, 2009, the
district court entered judgment in accordance with the verdicts.
On June 3, 2009, Pietroski renewed his motion for
judgment as a matter of law based on qualified immunity or, in the
alternative, insufficient evidence of excessive force; he also
moved in the alternative for a new trial.
[2]
On June 4, 2009, the
district court denied his post-trial motions. Pietroski timely
filed his notice of appeal on June 18, 2009. This court has
jurisdiction pursuant to 28 U.S.C. § 1291.
II. Qualified Immunity
We will first address Pietroski's argument that he is
entitled to qualified immunity. A district court's denial of
qualified immunity is a legal determination that we review de novo.
Iacobucci v. Boulter, 193 F.3d 14, 22 (1st Cir. 1999). When
reviewing a question of qualified immunity originally resolved
after a jury verdict, we must construe the evidence in the light
most favorable to the party that prevailed at trial, giving
"deference . . . to the jury's discernible resolution of disputed
factual issues." Id. at 23. Here, the jury returned a verdict in
Raiche's favor on his excessive force claims; thus, we construe the
facts in a manner supportive of that verdict. See id.; see also
Jennings v. Jones, 499 F.3d 2, 7 (1st Cir. 2007) ("[W]here the jury
has issued a general verdict . . . we view the facts in the light
most favorable to the verdict.") (internal quotation marks and
brackets removed). In the end, "[t]he availability of qualified
immunity after a trial is a legal question informed by the jury's
findings of fact, but ultimately committed to the court's
judgment." Acevedo-Garcia v. Monroig, 351 F.3d 547, 563 (1st Cir.
2003).
Qualified immunity affords limited protection to public
officials faced with liability under 42 U.S.C. § 1983, "'insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, to
determine whether qualified immunity applies in a given case, we
must determine: (1) whether a public official has violated a
plaintiff's constitutionally protected right; and (2) whether the
particular right that the official has violated was clearly
established at the time of the violation. Estrada v. Rhode Island,
594 F.3d 56, 62-63 (1st Cir. 2010). These two prongs of the
analysis need not be considered in any particular order, and both
prongs must be satisfied for a plaintiff to overcome a qualified
immunity defense. See Maldonado v. Fontanes, 568 F.3d 263, 269-70
(1st Cir. 2009). Additionally, in applying the second prong, we
must consider two subsidiary issues: (a) the clarity of the law in
general at the time of the alleged violation; and (b) the clarity
of the law as applied to the case – in other words, whether a
reasonable person in the defendant's shoes "would have understood
that his conduct violated the Plaintiff['s] constitutional rights."
Id. at 269. In conducting the whole analysis, we must take care
"to avoid the chilling effect of second-guessing where the
officer[], acting in the heat of events, made a defensible (albeit
imperfect) judgment." Statchen v. Palmer, --- F.3d ----, ---- (1st
Cir. 2010) [2010 WL 4027830, at *2] (citing Roy v. Inhabitants of
Lewiston, 42 F.3d 691, 695 (1st Cir. 1994)).
Although we do not need to follow the rigid structure
that we once did, we will proceed to conduct each step of the
analysis in the traditional order. This exercise reveals that,
given the jury's resolution of the facts, Pietroski's use of force
was not defensible and, therefore, that qualified immunity affords
him no refuge.
A. Qualified Immunity Applied to § 1983 Claim
Pietroski argues that he is entitled to qualified
immunity against Raiche's § 1983 excessive force claim. We will
therefore examine both prongs of qualified immunity analysis as
applied to this claim.
1. Prong One: The Constitutional Violation
Excessive force claims are founded on the Fourth
Amendment right to be free from unreasonable seizures of the
person. See U.S. Const. amend. IV; Graham v. Connor, 490 U.S. 386,
394-95 (1989). The Fourth Amendment is implicated where an officer
exceeds the bounds of reasonable force in effecting an arrest or
investigatory stop. See Graham, 490 U.S. at 394-95. We analyze
excessive force claims according to the constitutional touchstone
of objective reasonableness, so we do not consider an officer's
subjective "intent or motivation." Id. at 397; see also Saucier v.
Katz, 533 U.S. 194, 202 (2001), abrogated on other grounds by
Pearson, 129 S.Ct. 808. Instead, we determine whether "the
defendant officer employed force that was unreasonable under the
circumstances." Jennings, 499 F.3d at 11; see also Graham, 490
U.S. at 397. This determination requires us to balance the
individual's interest against the government's, weighing three non-exclusive factors: (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." Graham,
490 U.S. at 396; see also Morelli v. Webster, 552 F.3d 12, 23 (1st
Cir. 2009). Finally, because our analysis comes after a jury
verdict in Raiche's favor, we must consider the sufficiency of the
evidence supporting a finding of excessive force. See Jennings,
499 F.3d at 11 n.12. This evidence may be in the form of "expert
testimony, lay testimony, or other evidence," as long as "the jury
could evaluate the reasonableness of [Pietroski's] conduct." Id.
at 15 n.15. Viewing the facts in the light most favorable to
Raiche, as we must, we conclude that there is ample evidence to
support the jury's finding that Pietroski's conduct was
unreasonable under the circumstances and, therefore, that a
constitutional violation occurred.
First, we consider each of the Graham factors in turn to
assess the reasonableness of Pietroski's conduct under the
circumstances that he faced. As to the severity of the crimes
involved, the police initiated their pursuit because Raiche was
committing a civil motor vehicle violation by failing to wear a
helmet while driving a motorcycle. See Mass. Gen. Laws ch. 90, §
7. The police then arrested Raiche for failing to stop when
signaled by police. See Mass. Gen. Laws ch. 90, § 25. Absent some
other heated circumstances, these relatively minor infractions do
not justify an officer in the violent act of physically removing a
person from a parked motorcycle and slamming him into the pavement,
let alone the additional force Pietroski applied when Raiche was on
the ground offering no resistance. As to the threat Raiche posed,
he remained on his motorcycle behind a parked car and never
displayed any weapons or made any verbal threats. And as to
whether Raiche was attempting to flee or resisting arrest, he was
sitting on a stopped motorcycle. Moreover, he was not charged with
resisting arrest. Viewing the facts in the light most favorable to
Raiche, therefore, the force employed by Pietroski was unnecessary
to prevent Raiche from fleeing. Consequently, all of the Graham
factors indicate that Pietroski's use of force was wholly
unreasonable.
Looking beyond the Graham factors to the sufficiency of
the evidence, we find that the record contains ample evidence to
support a determination that Pietroski's conduct was unreasonable,
even under the Boston Police Department's own standards. Coyne's
candid testimony is particularly useful here. According to Coyne,
the Boston Police Academy instructs officers to follow the Use of
Force Continuum in determining the proper amount of force to use
when conducting a stop. The Continuum provides five levels of
intensity: (1) the presence of a uniformed police officer; (2)
verbal command, which includes a police car's overhead lights or
siren; (3) open-hand command, which entails physically taking
control of a person; (4) non-lethal incapacitating devices, such as
pepper spray; and (5) lethal force. Officers are to conduct a
traffic stop using the least amount of force necessary and to end
the use of force outright when a person has pulled over and
stopped. Coyne's testimony provided a clear framework for the jury
to assess Pietroski's use of force; applying this framework, a
reasonable jury could easily conclude that the use of force should
have ceased when Raiche stopped and pulled over in response to the
cruiser's overhead lights. Such a conclusion would compel a
finding that Pietroski acted unreasonably when he slammed Raiche
and his motorcycle to the pavement.
[3]
Notwithstanding our analysis of the Graham factors and
the sufficiency of the evidence, Pietroski contends that the
district court failed to account for the jury's verdict in his
favor on the issue of probable cause. Pietroski argues that his
limited success means that we should construe the facts in his
favor, not Raiche's. However, we may construe the facts relevant
to probable cause in Pietroski's favor and those relevant to
excessive force in Raiche's favor without any inconsistency. See,
e.g., Gallick v. Baltimore & O. R.R. Co., 372 U.S. 108, 119 (1963)
(providing that "it is the duty of the courts to attempt to
harmonize" a jury's findings "if it is possible under a fair
reading of them"). Indeed, a finding of excessive force may be
consistent with a finding of probable cause because the
"reasonableness" of an arrest "depends not only on when it is made"
– e.g., after probable cause has accrued – "but also on how it is
carried out." Graham, 490 U.S. at 395.
Probable cause to make an arrest is satisfied where an
officer has reason to believe that a crime has been committed, and
this seems to be what the jury found. See Iacobucci, 193 F.3d at
23; see also Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir. 1997)
(holding that probable cause exists only if the facts within the
arresting officer's knowledge "are sufficient to lead an ordinarily
prudent officer to conclude that an offense has been, is being, or
is about to be committed"). According to the jury verdict form,
when Pietroski arrested Raiche, he had probable cause "to believe
that [Raiche] had committed the crime of failing to stop for a
police officer" (emphasis added). Guided by Coyne's testimony that
the use of a police cruiser's overhead lights signals a driver to
pull over and stop, the jury could have concluded that the police
had probable cause to believe Raiche failed to submit when he did
not immediately pull over in response to the cruiser's overhead
lights. Under the same set of facts, the jury reasonably could
have concluded that Raiche pulled over and stopped after he became
aware of the cruiser's overhead lights and that no use of force was
required thereafter. Thus, the jury was free to conclude – as it
did – that the arrest was made at a reasonable time (after probable
cause had accrued), but in an unreasonable manner (by the exercise
of excessive force).
In all, both the law and the evidence support the jury's
and the district court's determination that Pietroski violated
Raiche's Fourth Amendment right to be free from unreasonable
seizures by employing excessive force against him. We now turn our
attention to the question of whether this right was clearly
established at the time Pietroski committed the violation.
2. Prong Two: The Right was Clearly Established
Pietroski may still mount a successful qualified immunity
defense if Raiche's Fourth Amendment right was not clearly
established at the time Pietroski committed the violation. As set
forth above, to determine whether the right was clearly
established, we must consider two subsidiary issues: (a) the
clarity of the law in general at the time of the alleged violation;
and (b) the clarity of the law as applied to the case – in other
words, whether a reasonable person in the defendant's shoes "would
have understood that his conduct violated the plaintiff['s]
constitutional rights." Maldonado, 568 F.3d at 269.
a. The Clarity of the Law in General
To determine whether the law is clear in general, we must
define "the right allegedly violated . . . at the appropriate level
of specificity." Wilson v. Layne, 526 U.S. 603, 615 (1999). Once
we have defined the right, we often consider whether the violation
itself is clearly established; a violation is clear "either if
courts have previously ruled that materially similar conduct was
unconstitutional," or if the conduct was "such an obvious violation
of the Fourth Amendment's general prohibition on unreasonable force
that a reasonable officer would not have required prior case law on
point to be on notice that his conduct was unlawful." Jennings,
499 F.3d at 16-17; see also United States v. Lanier, 520 U.S. 259,
271 (1997).
Here, the question may be defined specifically as
whether prior existing case law or general Fourth Amendment
principles gave Pietroski notice that it is unconstitutional for a
police officer to exert against a person the considerable force
used in this incident. We need not decide whether there are
materially similar cases of controlling authority or a consensus of
persuasive authority existing at the time of the incident which
would have clearly established the law. Cf. Wilson v. Layne, 526
U.S. 603, 617 (1999) (law is generally unclear where there is no
controlling authority or general consensus directly on point).
This is because Pietroski's excessive conduct was "such an obvious
violation of the Fourth Amendment's general prohibition on
unreasonable force that a reasonable officer would not have
required prior case law on point to be on notice that his conduct
was unlawful." Jennings, 499 F.3d at 16-17.
A reasonable officer with training on the Use of Force
Continuum would not have needed prior case law on point to
recognize that it is unconstitutional to tackle a person who has
already stopped in response to the officer's command to stop and
who presents no indications of dangerousness.
[4]
Such conduct is a
major departure from reasonable behavior under both the Graham
factors and the officer's training. Indeed, Pietroski jumped
immediately to the extreme end of the "open-hand" force category on
the Use of Force Continuum, tackling rather than otherwise subduing
Raiche, slamming his head to the pavement, and destroying his
motorcycle. Given the overall state of the law at the time of
Raiche's arrest and the violence of Pietroski's conduct, it was
clearly unconstitutional for a police officer to apply the force
that Pietroski did under the circumstances.
b. The Clarity of the Law as Applied
Not only was the law generally clear that Pietroski's
conduct violated Raiche's right to be free from unreasonable
seizures, but it was also sufficiently clear that "an objectively
reasonable [officer] would have believed that the action taken
violated that clearly established constitutional right." Jennings,
499 F.3d at 18 (internal quotation marks omitted). As our previous
discussion makes clear, the record does not reveal any
circumstances that would support Pietroski's use of force as
reasonable, but it does reveal that an officer with Pietroski's
training should not have used the force that he did. Thus,
Pietroski cannot claim that he "was reasonably mistaken as to the
degree of force he should have used," and he has no recourse to
qualified immunity. Id.
We sympathize with the challenging work of police
officers, which often forces them to make "split-second judgments
– in circumstances that are tense, uncertain and rapidly evolving
– about the amount of force that is necessary in a particular
situation." Graham, 490 U.S. at 396. However, we do not find such
circumstances here. An objectively reasonable police officer would
have believed that tackling Raiche from his motorcycle and slamming
him into the pavement would violate his constitutional right to be
free from excessive force.
We have found that the record contains sufficient
evidence to support the jury's verdict that Pietroski used
excessive force to arrest Raiche in violation of his Fourth
Amendment rights. Additionally, we have found that the law at the
time was clearly established enough to caution Pietroski that the
force he exercised against Raiche was excessive. Finally, we have
found that an objectively reasonable officer under the specific
circumstances in which Pietroski found himself would have believed
that the force that Pietroski used to make the arrest was
excessive. Therefore, Pietroski is not entitled to qualified
immunity against Raiche's excessive force claim under § 1983. We
affirm the denial of Pietroski's motion for judgment as a matter of
law on Raiche's § 1983 excessive force claim.
B. Qualified Immunity Applied to State Law Claims
Pietroski also contends that he is entitled to qualified
immunity against Raiche's excessive force claims asserted under
state law. Our above analysis compels us to hold otherwise.
Nevertheless, we will briefly address each state claim.
1. MCRA
The MCRA is the state analog to § 1983 and provides a
cause of action for an individual whose rights under the
constitution or laws of either the United States or the
Commonwealth of Massachusetts have been interfered with by
"threats, intimidation or coercion." Mass. Gen. Laws ch. 12, §§
11H & I. Most importantly here, the Supreme Judicial Court of
Massachusetts has held that MCRA claims are subject to the same
standard of immunity for police officers that is used for claims
asserted under § 1983. Duarte v. Healy, 405 Mass. 43, 46 (1989);
see also Dean v. City of Worcester, 924 F.2d 364, 369-70 (1st Cir.
1991). Raiche's MCRA claim, like his § 1983 claim, is based on the
allegation that Pietroski used excessive force to arrest Raiche.
Because we have already determined that Pietroski is not protected
by qualified immunity with respect to the § 1983 excessive force
claim, we likewise conclude that he is not entitled to qualified
immunity against the MCRA claim alleging excessive force.
2. Common Law Claims for Assault and Battery
Massachusetts law allows for assault and battery claims
against police officers who use excessive force in conducting an
arrest. See Powers v. Sturtevant, 85 N.E. 84, 84 (Mass. 1908)
(holding that defendant officer "had not the right to use
unreasonable or excessive force and if he did, he is liable to the
plaintiff for any injury suffered in consequence thereof"); see
also Dean, 924 F.2d at 369. However, Massachusetts law also allows
an officer to use reasonable force in conducting a lawful arrest:
reasonable force is a valid defense to assault and battery. See
Dean, 924 F.2d at 369. Where a plaintiff alleges both a § 1983
excessive force claim and common law claims for assault and
battery, our determination of the reasonableness of the force used
under § 1983 controls our determination of the reasonableness of
the force used under the common law assault and battery claims.
See id. We have already held that Pietroski used excessive force;
therefore, we must uphold the jury's verdict that Pietroski
committed assault and battery.
Pietroski also asserts that he is entitled to state
qualified immunity against Raiche's common law claims of assault
and battery. Massachusetts law is unsettled regarding the
existence of a state-law concept analogous to federal qualified
immunity. See Foster v. McGrail, 844 F. Supp. 16, 29 (D. Mass.
1994). Despite uncertainty regarding the existence of state
qualified immunity, we do not need to address this issue because we
have already found that Pietroski is not entitled to qualified
immunity at all.
In conclusion, Pietroski is not entitled to qualified
immunity against Raiche's excessive force claims made under state
law for precisely the same reasons that he is not entitled to
qualified immunity against Raiche's excessive force claim made
under § 1983. We therefore affirm the denial of Pietroski's motion
for judgment as a matter of law on the state law excessive force
claims.
III. New Trial
Qualified immunity aside, Pietroski requests in the
alternative that this court order a new trial on Raiche's excessive
force claims. As grounds for a new trial, Pietroski asserts that
the evidence in the record does not support the jury's verdict
against him and that allowing the verdict to stand would result in
a miscarriage of justice.
Where the trial judge has denied a motion for a new trial
on the issue of the sufficiency of the evidence, it is "only in a
very unusual case that we will reverse such a ruling as an abuse of
discretion." Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987)
(quoting Sears v. Pauly, 261 F.2d 304, 309 (1st Cir. 1958)). "[We]
may set aside a jury's verdict and order a new trial only if the
verdict is against the demonstrable weight of the credible evidence
or results in a blatant miscarriage of justice." Sanchez v. P.R.
Oil Co., 37 F.3d 712, 717 (1st Cir. 1994).
We have already concluded that the jury's verdict against
Pietroski on the excessive force claims was supported by
sufficient, and in fact quite ample, evidence in the record. See
supra Part II.A.1. Therefore, a new trial is not warranted. See
Sanchez, 37 F.3d at 717. Moreover, given the jury's finding that
Pietroski used substantial physical force against a stopped and
compliant individual suspected of only minor infractions, upholding
the verdict is simply not any kind of miscarriage of justice let
alone a blatant one. See id. The district court did not abuse its
discretion in denying the motion for a new trial; accordingly, we
affirm.
IV. Conclusion
For the reasons set forth above, we affirm the district
court's denial of Pietroski's post-trial motion for judgment as a
matter of law and motion for a new trial.
Footnotes
[1] ' Of the Federal Circuit, sitting by designation.
[2] ' Raiche contends that Pietroski's post-trial motions were not
filed on the tenth business day after entry of judgment as required
by then-Rules 50(b) and 59(b) of the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 50(b) and 59(b) (2007) (amended
effective December 1, 2009 to extend the filing period to 28
calendar days). However, Raiche overlooks that Memorial Day, May
25, 2009, was excluded from the filing period because it was a
legal holiday. See Fed. R. Civ. P. 6(a)(4)(A) (2007) (amended
2009). Judgment was entered on May 19, 2009, and Pietroski's post-trial motions were timely filed on June 3, 2009.
[3] ' Even absent Coyne's testimony, however, the jury could have
used simple common sense to conclude that Pietroski acted
unreasonably by tackling a compliant Raiche from his stopped
motorcycle. See Jennings, 499 F.3d at 15 (noting that common sense
may be an appropriate basis for a finding of excessive force).
[4] ' Raiche and Coyne testified that they did not hear Pietroski
give Raiche any instructions; therefore, taking the facts in
Raiche's favor, the only command at issue is the officers' use of
the cruiser's overhead lights. However, even if Pietroski did
command Raiche to show his hands and get down on the ground while
running from the cruiser to Raiche, Raiche would not have had time
to comply – according to Pietroski's testimony, the cruiser had
parked within ten feet of Raiche's motorcycle, so Pietroski could
not have taken more than a couple of seconds to reach Raiche.
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