Parker v. Gerrish

• Decision Date: 05 November 2008
• Docket Number: No. 08-1045.,08-1045.
• Citation: 547 F.3d 1
• Parties: Stephen PARKER, Plaintiff, Appellee, v. Kevin GERRISH, Defendant, Appellant, and City of South Portland; South Portland Police Department; Edward Googins, in his individual and official capacities; Jeffrey Caldwell, in his individual and official capacities; and Todd Bernard, in his individual and official capacities, Defendants.
• Court: U.S. Court of Appeals — First Circuit

547 F.3d 1

Stephen PARKER, Plaintiff, Appellee, v. Kevin GERRISH, Defendant, Appellant, and City of South Portland; South Portland Police Department; Edward Googins, in his individual and official capacities; Jeffrey Caldwell, in his individual and official capacities; and Todd Bernard, in his individual and official capacities, Defendants.

No. 08-1045.

United States Court of Appeals, First Circuit.

Heard July 28, 2008.

Decided November 5, 2008.

Edward R. Benjamin, Jr., with whom Thompson & Bowie, LLP, was on brief for appellant.

Benjamin R. Gideon, with whom Berman & Simmons, P.A., was on brief for appellee.

Before TORRUELLA, BOUDIN, and DYK,^* Circuit Judges.

TORRUELLA, Circuit Judge.

A jury found in favor of plaintiff, Stephen Parker, on his claim that defendant, Officer Kevin Gerrish of the South Portland Police Department, violated his constitutional rights by using his Taser during the course of arresting Parker for operating a motor vehicle while under the influence of alcohol. The jury awarded $111,000 to Parker, who complained that the use of the Taser and subsequent cuffing caused nerve damage to his arm and injured his shoulder. After trial, the district court denied Gerrish's motions for judgment as a matter of law and a new trial. On appeal, Gerrish disputes the finding of excessive force, argues that he is entitled to qualified immunity, and challenges the district court's answer to a jury question as responsible for an inappropriate damages award. After careful review of the record, including a videotape recording of the incident, we affirm.

I. Background

A. Facts

We present the facts by construing the evidence in the light most hospitable to the jury's verdict. Jennings v. Jones, 499 F.3d 2, 7 (1st Cir.2007). To clarify our later discussion, we also note some points of dispute.

At around noon on July 20, 2005, Parker and his girlfriend went boating. While on the boat, Parker consumed "3 or 4" 16 ounce cups of a cocktail of ginger ale and whiskey. At around 7:00 PM, Parker docked his boat in the marina and proceeded to drive his girlfriend home. While driving home, Parker passed Gerrish, who was serving a warrant with Officer Jeffrey Caldwell. Gerrish observed Parker's vehicle, visually estimated that Parker was speeding, pursued Parker, and effected a traffic stop. When Gerrish turned on his police lights, a video camera began recording. The video recording did not include audio. This recording indicates the time of the stop to be approximately 7:49 PM.

Gerrish asked Parker for his license and registration and noticed indicia of intoxication. Parker admitted to Gerrish that he had three or four drinks. At trial, Parker did not dispute that he was intoxicated at the time of the stop. Gerrish ordered Parker to exit the vehicle, and Parker complied. Gerrish and Parker moved behind Parker's vehicle, in direct view of the video camera. Parker cooperated with Gerrish through a number of sobriety tests, which Gerrish found indicated that Parker was intoxicated.

In one test, Gerrish asked Parker to stand on his left foot. Gerrish demonstrated the procedure a number of times. Parker attempted the test but eventually began hopping, lost his balance, spun around, placed his hands on his vehicle, and said, "[D]o what you got to do." Parker expected to be arrested and Gerrish understood that Parker was giving himself up for arrest. At this point, approximately 7:57 PM on the video recording, Gerrish had been questioning Parker for approximately seven minutes.

Caldwell arrived on the scene during earlier tests, but was not initially within view of the video camera. Caldwell testified that his badge was on display and that he did not intervene in Gerrish's interview of Parker. But Parker testified that Caldwell's badge was not on display at first and that he did not learn until later in the encounter that Caldwell was a police officer. Parker further testified that Caldwell made intimidating gestures at Parker, shouted at Parker, and led Parker to be confused at some of Gerrish's instructions. Specifically, Parker testified that after he turned to place his hands on his truck, Caldwell was being "boisterous" and ordered him to turn back around. Gerrish also ordered Parker to turn around. Parker complied by turning back around, but admits that as he turned back to face the officers, he gave Caldwell the finger and said, "I don't even know who the fuck you are." Parker then crossed his arms in front of his chest. Parker also admits that he earlier said, "Fuck you," to Caldwell as he was placing his hands on the back of the truck.

Though Gerrish had already decided he would arrest Parker regardless, Gerrish asked Parker to rate his own intoxication on a ten point scale. Gerrish then attempted to physically uncross Parker's arms and place him under arrest. Gerrish readied his handcuffs while grabbing Parker's arm, which was still crossed in front of his chest. Gerrish tried to move Parker's arm, but Parker resisted. Parker testified that he didn't hear Gerrish at that time as he was distracted by Caldwell.

Gerrish then stepped back, drew his Taser, and ordered Parker to turn around and place his hands behind his back. Parker complied, turned around, and clasped his right wrist with his left hand. Gerrish handed his handcuffs to Caldwell, who had recently entered the range of the video recorder. As Caldwell approached Parker, Parker told Caldwell that he was not afraid of him. Caldwell testified that he stepped back and was concerned there would be a struggle. But Caldwell then proceeded to cuff Parker's left wrist in two seconds. Caldwell then ordered Parker to release his own clasped right wrist. At first, Parker did not comply. Police Sergeant Todd Bernard, an officer who arrived on the scene, and Caldwell testified that Parker was warned that he would be "tased" if he did not comply. Parker testified that he never heard a warning.

Caldwell then applied force to Parker's right hand in an effort to get Parker to release his wrist. Since what happened next is at the heart of the case, we will recount each witness's perspective. Parker testified that at this point he released his grip and was then shot with the Taser. Caldwell testified that Parker let go of his right wrist, and then Parker's right hand moved as if Parker was attempting to escape or attack. Caldwell testified that he then grabbed the right arm. Gerrish testified that he saw Parker's hand release, but the rest of Parker's right arm was obscured by Caldwell. Nonetheless, Gerrish and Caldwell both testified that Parker dipped his shoulder and began to swing his right arm up. Gerrish testified that he saw Caldwell, "dip forward and appear to come up on his tiptoes as if he was being pulled off balance." At this point, Gerrish fired his Taser.

Gerrish did not verbally announce the use of his Taser as is recommended. Caldwell was surprised by Gerrish's use of the Taser. Caldwell testified that approximately one second elapsed between when Parker released his grip and when Gerrish fired the Taser. On cross examination, Gerrish agreed that nothing Parker did prior to this instant "either in themselves or even in collectivity" justified the use of the Taser. Rather, Gerrish explained that he fired the Taser when he "saw a threat to Officer Caldwell" and "reacted."

On cross examination, Parker conceded that he had "resist[ed]" "physically but not mentally" Gerrish's attempts to uncross his arms and was confused at the time since Caldwell was also talking and telling him to turn back around. Parker further testified that after placing his hands behind his back, he "initially resisted" Caldwell's attempt to get him to release his grip since he was not instructed how to place his hands and already thought they were as close as they could get. Parker further admitted that Caldwell told Parker he was resisting arrest and that Caldwell was "prying my hands apart." Nonetheless, Parker maintained that he then voluntarily released his hand, testifying, "While he was prying I let go." He further testified that he was shot with the Taser immediately after letting go.

The video recording reveals that approximately six seconds elapsed between the cuffing of the left hand and the firing of the Taser, during which time Caldwell was attempting to cuff Parker's right hand. Though Parker's right arm is obscured behind Caldwell in the video, Gerrish maintains on appeal that Parker's "dramatic" move is evident from the video recording. But the video recording shows only minimal movement by Parker at this key moment. In fact, Caldwell admitted that the movement he described Parker making just before he was shot with the Taser is not clearly visible on the video. The video does show some movement by Caldwell just before Gerrish fired the Taser. But, the video does not clearly reveal a "dramatic" move by Parker before Gerrish fired the Taser.

At the time that Gerrish fired the Taser, there were three officers on the scene. Bernard arrived on the scene approximately five to ten seconds before Gerrish fired the Taser. Gerrish was aware of Bernard's presence before he fired his Taser. Bernard also drew his Taser. Bernard did not fire his Taser, but explained that he had assumed a backup role to that of Gerrish.

The parties did not dispute that Parker was unarmed and never assaulted or attempted to assault the officers on the scene. Gerrish also testified that Parker became increasingly frustrated as the encounter progressed. Parker did not dispute that at times he flexed his muscles and made gestures that were defiant.

Prior to the cuffing, Parker did not attempt to escape. Nonetheless, the officers testified that when Parker moved his arm, they feared that he was trying to escape and that he could fight them using his handcuff as a weapon. As stated above, Parker maintained he made no such move. Gerrish explained that physically grappling with a...