Академический Документы
Профессиональный Документы
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No. 16-2107
ALFONSO CIOLINO,
Plaintiff, Appellee,
CINSIA CIOLINO,
Plaintiff,
v.
GEORGE GIKAS,
Defendant, Appellant,
Defendants.
Before
and dragged him backward and downward to the pavement, after seeing
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
arrest."
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district court that a reasonable officer in Gikas's position would
court's decisions not to define the word "incited" for the jury,
I. Background
A. Facts
1999)).
Cinsia, and two other couples attended together the annual St.
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
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maybe two" over the course of the evening and that he was not drunk
midnight, which was approximately when Ciolino left the Club. Law
John Pickles, were present on K-9 duty. Two other officers from
the same department, Aaron Eastman and David Earle, were also
the crowd began moving along the sidewalk; others moved slowly or
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
toward the dog, without ever touching the dog or leaving the
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can't do anything." 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. The video shows Gikas's and Pickles's dogs
Ciolino's gesture.
of the crowd. The district court stated, and the video confirms,
that Ciolino "did not use or threaten violence, nor was he inciting
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awkwardly to the ground, landing hard on his right side. The video
charges.
December 31, 2013, pleading 1983 and state law claims against
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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?
not liable and found Gikas liable as to the 1983 excessive force
Viewing the record in the light most favorable to the verdict, the
the safety of the crowd, the officers, or the [K-9] dogs," Ciolino,
had been minor and had involved neither violence nor resistance to
arrest, id. at *5; and that the situation outside the Club had not
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"that, at the time of the incident on June 30, 2013, it was clearly
Raiche, 623 F.3d at 39; Morelli v. Webster, 552 F.3d 12, 24 (1st
his arrest." During its deliberations, the jury sent the district
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the rest of my instructions, you should make
it.
the jury not to answer Question 3(d). We review each of those two
Alejandro, 597 F.3d 423, 434 (1st Cir. 2010) (applying abuse of
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
[of the word 'intimidate'] even when the jury requested one").
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in order to elicit factfinding that is relevant to the court's
Shield of Mass., Inc., 308 F.3d 25, 34 n.9 (1st Cir. 2002) (quoting
questions.
that its immunity holding "would have been the same if the special
n.3.
verdict motion for judgment as a matter of law under Rule 50," and
See Stamps v. Town of Framingham, 813 F.3d 27, 33, 39 (1st Cir.
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A. Qualified Immunity Framework
548, 551 (2017) (per curiam) (quoting Mullenix v. Luna, 136 S. Ct.
563 U.S. 731, 742 (2011)); see also, e.g., City & County of San
367 (1st Cir. 2014) (quoting Brosseau v. Haugen, 543 U.S. 194, 198
Garner, 471 U.S. 1 (1985), provide the "general tests" for Fourth
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used: (1) "the severity of the crime at issue"; (2) "whether the
(2) if so, whether the right was 'clearly established' at the time
In this case, the jury has already found that Gikas violated
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that verdict, either in his post-verdict motion in the district
second prong, in turn, has two elements: 'We ask (a) whether the
doing violated the right, and (b) whether in the particular factual
officer would have had "clear notice" of it. Mlodzinski, 648 F.3d
F.3d at 33; see also Decotiis, 635 F.3d at 3637 (explaining that
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but "is highly fact specific" (quoting Estrada v. Rhode Island,
742 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)), such that
to stop by using their cruiser's overhead lights when they saw him
did not immediately stop. Id. When Raiche did pull over,
tackled him, taking him off the motorcycle. Id. at 34. A jury
later found that Pietroski had used excessive force. Id. at 35.
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Raiche, like Ciolino, disobeyed a police order but
significant force was used to subdue him. See id. at 39 & n.3.
rotator cuff, despite the fact that she had committed a minor
[the plaintiff] bodily from the booth and across the table," id.
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grant of qualified immunity, finding the defendant officer's
officer might have made under the circumstances. See id. at 25;
the scene outside the Club was so volatile that he was "forced to
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
Sergeant Pickles, the officer whose dog Ciolino taunts just before
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active threat; rather, his goal in removing Ciolino forcibly from
faced much more volatile and dangerous scenes than the one Gikas
confronted, and the persons against whom force was used posed a
Mueller, 680 F.3d 70, 7475 (1st Cir. 2012) (granting immunity
plaintiff had taken a step toward officer, whose back was turned,
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Jan. 14, 2016) (granting immunity to officers for actions aimed at
suicidal man), aff'd, No. 16-414-cv, 2017 WL 362685 (2d Cir. Jan.
Town of Jay, 483 F. Supp. 2d 19, 2627 (D. Me. 2007) (granting
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arrestee ignored numerous orders to stop, was clearly intoxicated,
took Ciolino to the ground with force. Cf. Stamps, 813 F.3d at 32
dogs alone.
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Ciolino's hands, rather than taking the actions Gikas did. The
Raiche, 623 F.3d at 39, rather than to control Ciolino with a less
all that he was under arrest before Gikas decided to use force.
also fell outside the "margin of error," Morelli, 552 F.3d at 24,
IV. Conclusion
affirmed.
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