310 F.Supp.2d 356 (2004) | Cited 3 times | D. Massachusetts | January 28, 2004

1. The parties consented to transfer the case to this court for allpurposes, including trial and the entry of final judgment, pursuant to28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. I. INTRODUCTION The plaintiff, Richard Parker ("Parker"), brought this action allegingthat his federal constitutional and state law rights were violated onFebruary 20, 1998 when he was shot a number of times by police followinga car chase which resulted in his arrest. Parker alleged several claimsagainst three individual Swansea police officers as well as against theTown of Swansea (the "Town") itself.[fn2] However, all of his claimsexcept for those brought pursuant to 42 U.S.C. § 1983 and the pendentassault and battery claimsPage 2were either resolved at the summary judgment stage or withdrawnduring the trial. A jury returned a verdict in favor of the Town and twoof the police officers, William McGrath and Marc Haslam. Officer RichardRoussel ("Officer Roussel") was found liable for compensatory damages inthe amount of $250,000; no punitive damages were awarded. Presently before the court is Officer Roussel's "Renewed Motion forJudgment as a Matter of Law" (Docket # 130) wherein he contends that heis entitled to qualified immunity on the § 1983 claim, and thatjudgment should be entered in his favor on the assault an battery countas well. For the reasons detailed herein, the motion is DENIED. II. STATEMENT OF FACTS[fn3] The jury could have found that on the evening of February 19, 1998,Parker drove his jeep from his home in New London, Connecticut to attenda concert at a club in Providence, Rhode Island. He discovered that theclub was closed, and was traveling home when he got lost inMassachusetts. At approximately 12:20 a.m., Swansea Police OfficerWilliam McGrath contends he observed Parker's jeep drifting betweeneastbound lanes and into a westbound lane on Route 6 in Swansea. Duringthis "drifting," ParkerPage 3allegedly crossed over the double yellow center line of the road,which is a motor vehicle violation in Massachusetts. According to Officer McGrath, Parker's erratic driving raised hissuspicions so he activated his lights and siren to signal Parker to pullover. Parker complied and pulled over briefly. Officer McGrath pulled hiscar alongside and slightly to the front of the driver's side of Parker'sjeep. Parker contends that while he was waiting for Officer McGrath toapproach his vehicle, a second Swansea police car driven by SwanseaPolice Officer Marc Haslam approached the scene traveling at a rapidspeed and pulled in front of him. After Officer McGrath exited hiscruiser to approach Parker's jeep, Parker got scared and drove away,fleeing on to Route 1-195 eastbound.[fn4] The Motor Vehicle Pursuit After Parker fled, Officers Haslam and McGrath followed him onto 1-195.Officer Roussel joined the chase, as did Somerset Police Officer JeffreyCote. While traveling approximately 65-75 mph, Officer Roussel's car wasdirectly in front of Parker's jeep, Officer McGrath was on Parker'sright, and Officer Haslam was directly behind Parker. This configurationis known as a "rolling road-block" or a "box-in." The defendantstestified that Parker attempted to ram their cruisers during this chase,which Parker denies.Page 4 The vehicles remained in this "box-in" formation until they arrived atthe Braga Bridge, which is located near exit 10. At that point, adisabled vehicle in the roadway forced the cars into a singe file line.In addition, Fall River Police Officer Brian O'Hearn, who had receivedword of the chase, was at the bridge standing behind a vehicle with hisgun drawn. Parker testified that he did not know that Officer O'Hearnwanted him to stop. After slowing down substantially, Parker managed toavoid the vehicle and proceed over the bridge. Shortly thereafter, around exit 10 which accesses Route 88, Swansea'sSergeant Sadler who had been supervising the pursuit from the station andknew multiple cruisers were involved, was informed by the officers thatthe vehicles were traveling at approximately 75 mph. He ordered theofficers to stop the chase because the offenses for which they werepursuing Parker were just motor vehicle offenses. At that point, all theofficers complied and turned off their sirens and blue lights, whileslowing down in preparation for taking exit 10. However, Parker suddenlycut across the highway and took exit 10 himself. As Parker was taking theexit, he lost control of his jeep and went off the road, hitting a treeand landing in a ditch. The Post-Pursuit Shooting All four police cars also took exit 10 and stopped near the crash site.It is undisputed that Officer Roussel immediately approached Parker'sjeep. Officer Roussel characterized his approach as "walking quickly"with his flashlight in one hand and hisPage 5service firearm in the other. The parties disagree as to thesubsequent events that transpired at the crash site. Parker testified that shortly after crashing, he exited the jeep withhis hands out in front of him and with his palms facing out because hewas attempting to surrender. It is undisputed that Parker was wearingcamouflage pants, a black cap, and black weight-lifting gloves with thefingertips cut off. A jury could have found that Officer Roussel did notgive Parker time to surrender, but rather rushed up to within ten feet ofParker's jeep, and immediately started shooting. It is undisputed thatOfficer Roussel fired 14 shots at Parker, and then dove to his right androlled to the right behind the rear of the jeep, dropping his flashlight.According to the defendants, the other officers believed that OfficerRoussel had been shot, and they began firing at Parker as well. Rousselretreated to behind his vehicle and assumed a position of cover. He shotat Parker an additional 14 times. All of the officers testified that they believed that Parker was armed.Although the area was searched, no gun was ever found, and Parker denieshaving been armed. According to Parker, although he initially had his hands palms out infront of him when he got out of the jeep, he was soon shot in the fingerand grabbed the injured finger tightly. Parker also grabbed other partsof his body as he was hit in those places with bullets. Despite theintense gunfire, Parker did not go down immediately, and the policecontinued to shoot until, eventually, Parker retreated and fell into aditch.Page 6 Massachusetts State Police ballistics testing conclusively determinedthat the police officers fired a total of 49 shots at Parker. Between sixand eight of these bullets struck him. These shots hit him in the foot,four places in his legs, his penis, and his abdomen. Although 28 of theshots were attributed to Roussel, it is unknown how many of his shots, ifany, struck Parker. The critical difference between the defendants' version of events andParker's is that the defendants testified that Parker pretended to bearmed and acted accordingly. Thus, according to the defendants, asRoussel approached the jeep, he commanded Parker to stay in the vehicleand put his hands out the window. Parker briefly complied and put onehand out the window before quickly retracting it. According to thedefendants, when Roussel was approximately ten feet away from the jeep,Parker abruptly exited the driver's side of the vehicle in a "combatcrouch" shooting stance and turned towards the officers with his handsclasped together in front of him at waistband level, and started toadvance towards Roussel. The defendants asserted that Parker then raisedhis hands to shoulder level in Roussel's direction while still claspedtogether, pretending to aim a gun at Roussel. The defendants testifiedthat they repeatedly instructed Parker to "get down,""show us yourhands," and "drop the gun," but that Parker did not comply, and so theycontinued firing at him. In short, according to the defendants, theyreasonably believed (and continued to assert at trial) that Parker wasarmed, and that they were acting in self-defense. By its verdict, thejury apparently foundPage 7Officers Haslam's and McGrath's conduct reasonable under thecircumstances, but not Officer Roussel's. It is undisputed that after being shot repeatedly Parker finallyreturned to the ditch area near his jeep and collapsed on the ground. Noshots were fired at Parker while he was retreating. The defendantofficers, accompanied by officers from other departments, converged onParker and handcuffed him. Parker was then taken by ambulance, and thenhelicopter, to the hospital where he was listed in critical condition. III. DISCUSSION A. Standard of Review Roussel has renewed his motion for judgment as a matter of law pursuantto Fed.R.Civ.P. 50(b). In ruling on such a motion, the court must"examine the record as a whole, reading the evidence in the light mostfavorable to the jury verdict." Cruz-Vargas v. R.J. Reynolds TobaccoCo., 348 F.3d at 275. Accordingly, the court's review is "weightedtoward preservation of the jury verdict." Primus v. Galgano,329 F.3d 236, 241 (1st Cir. 2003) (internal citation and quotationsomitted). "When a qualified immunity defense is pressed after a juryverdict, the evidence must be construed in the light most hospitable tothe party that prevailed at trial . . . and deference should be accordedthe jury's discernible resolution of disputed factual issues."Jarrett v. Town of Yarmouth, 331 F.3d 140, 147 (1st Cir.),cert. denied. ___ U.S.___, 124 S.Ct. 573, ___ L. Ed.2d___ (2003) (quoting Iacobucci v. Boulter, 193 F.3d 14, 23 (1stCir. 1999)). A RulePage 850(b) motion should be allowed "only if the facts and inferencespoint so strongly and overwhelmingly in favor of the movant that areasonable jury could not have reached a verdict against that party."Santos v. Sunrise Med., Inc., 351 F.3d 587, 590 (1st Cir. 2003)(quoting Star Fin. Servs., Inc. v. Aastar Mortgage Corp.,89 F.3d 5, 8 (1st Cir. 1996)) (additional citation omitted). Applying theseprinciples to the instant case requires that Officer Roussel's motion bedenied. B. 42 U.S.C. § 1983 Officer Roussel's primary argument in the instant motion, as it was atthe summary judgment stage, is that he cannot be liable to Parker under§ 1983 for using excessive force during the arrest because he isentitled to qualified immunity. For the reasons that follow, this courtdisagrees. Pursuant to 42 U.S.C. § 1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ."A claim under section 1983 has two essential elements. First, thechallenged conduct must be attributable to a person acting under color ofstate law . . .; second, the conduct must have worked a denial ofrights secured by the Constitution or by federal law." Sotov. Flores,Page 9103 F.3d 1056. 1061 1st Cir.), cert. denied,522 U.S. 819. 118S.Ct.71, 139 L.Ed.2d 32 (1997), and cases cited. The doctrine of qualified immunity provides that, even where there hasbeen a constitutional violation, "`[g]overnment officials performingdiscretionary functions generally are shielded from liability for civildamages insofar as their conduct does not violate clearly establishedstatutory or constitutional rights of which a reasonable person wouldhave known.'" Tower v. Leslie-Brown, 326 F.3d 290, 296 (1stCir. 2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). "The availability ofqualified immunity after a trial is a legal question informed by thejury's findings of fact, but ultimately committed to the court'sjudgment." Acevedo-Garcia v. Monroig, 351 F.3d 547, 563 (1stCir. 2003). Determining whether qualified immunity is available to a defendant in agiven case requires the court to make a "trifurcated inquiry."[fn5]Id. The first question is whether "the plaintiff has allegedthe violation of a constitutional right," if so, the court then asks"whether the contours of the right were sufficiently established at thetime of the alleged violation," and, if so, the final question is"whether an objectively reasonable official would have believed that theaction taken or omitted violated that right." Id. at 563-64(quoting Hatch v. Dept. for Children. Youth and Their Families,274 F.3d 12, 20 (1st Cir.Page 102001)). Applying these standards to the instant case compels theconclusion that Officer Roussel is not entitled to qualified immunity. 1. The Alleged Violation of a ConstitutionalRight There was sufficient evidence for the jury to find that Officer Rousselviolated Parker's Fourth Amendment right to be free from excessive forceduring his arrest. In evaluating "a Rule 50(b) motion after a juryverdict," the first prong of the immunity analysis focuses on "whether,taken in the light most favorable to the party asserting the injury, theevidence adduced at trial is sufficient to establish that [the officers]committed a constitutional violation[.]" Figg v. Schroeder,312 F.3d 625, 635 (4th Cir. 2002) (internal citations and quotations omitted)(alteration in original); accord Jarrett v. Town of Yarmouth,331 F.3d at 146-47 (first step in qualified immunity inquiry after juryreturned verdict for plaintiff was to consider whether the facts allegedshow that the officer's conduct violated a constitutional right). The parties agree that where, as here, an excessive force claim arisesin the context of an arrest, it involves the protections of the FourthAmendment which guarantees citizens the right "to be secure . . .against unreasonable . . . seizures" of their person. Graham v.Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443(1989). The dispositive question is whether the amount of force used wasobjectively reasonable under the circumstances. See Jarrett v. Townof Yarmouth. 331 F.3d at 150. The "Supreme Court's standard ofreasonableness is comparatively generous to the police inPage 11cases where potential danger, emergency conditions or other exigentcircumstances are present." Roy v. Inhabitants of the City ofLewiston, 42 F.3d 691, 695 (1st Cir. 1994).[fn6] "Determining whether the force used to effect a particular seizure is`reasonable' under the Fourth Amendment requires a careful balancing ofthe nature and quality of the intrusion on the individual's FourthAmendment interests against the countervailing governmental interests atstake." Graham v. Connor, 490 U.S. at 396, 109 S.Ct. at 1871(internal citation and quotation omitted). It is a "fact-intensiveinquiry that is highly sensitive to the circumstances of the particularcase[.]" Jarrett v. Town of Yarmouth, 331 F.3d at 148. Theofficer's conduct "must be judged from the perspective of a reasonableofficer on the scene, rather than with the 20/20 vision of hindsight."Graham v. Connor, 490 U.S. at 396, 109 S.Ct. at 1872.Relevant factors include "the severity of the crime at issue, whether thesuspect poses an immediate threat to the safety of the officers orothers, and whether he is actively resisting arrest or attempting toevade arrest by flight." Jarrett v. Town of Yarmouth, 331 F.3dat 148 (quoting Graham v. Connor, 490 U.S. at 396, 109 1872). Moreover, in the Fourth Amendment context, "under clearlyestablished law," the use of deadly force "is constitutional only if, ata minimum, aPage 12suspect poses an immediate threat to police officers or civilians."Jarrett v. Town of Yarmouth, 331 F.3d at 149 (citingTennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701,85 L.Ed.2d 1 (1985)). In light of the evidence presented at trial, therewas a reasonable basis for the jury to find that Officer Roussel deprivedParker of his Fourth Amendment rights. Based on its verdict, the jury may have concluded that Officer Rousselacted unreasonably in failing to take time to assess the situation or togive Parker time to surrender before rushing towards the jeep with hisgun drawn and opening fire. The jury also may have credited Parker'stestimony that he emerged from the jeep with his hands extended in frontof him so that he could surrender to the officers, and that he did notclasp his hands together until after he was shot in the hand. The jurycould have concluded that no objectively reasonable police officer couldhave deemed that Parker posed a threat warranting the use of deadly forceat the time Officer Roussel started shooting. Additionally, assuming, arguendo, Roussel acted reasonably infiring the initial shots at Parker, the jury could have found that he wasnot justified in continuing to shoot. Cf. Napier v. Town ofWindham, 187 F.3d 177, 185-87 (1st Cir. 1999) (analyzing each seriesof shots separately). The testimony from all officers was that theshooting continued uninterrupted until Parker finally fell down. Thus,the jury could reasonably have concluded that Officer Roussel did notreassess whether, and to what extent, ParkerPage 13constituted a threat while he continued to shoot. Under suchcircumstances, the evidence at trial was sufficient to establish thatOfficer Roussel committed a constitutional violation and, thus, the firstprong of the immunity analysis has been met. Officer Roussel also asserts that he cannot be held liable under §1983 because he did not intend for the force he used to be "excessive."This argument fails, however, because the proper inquiry under the FourthAmendment is not "whether the police officer intended to brutalize asuspect or merely intended to discipline him," rather, the question is"whether the officer intended to perform the underlying violent act atall." Glasco. v. Ballard, 768 F. Supp. 176, 179 (E.D. Va. 1991)(accidental discharge of gun does not support a § 1983 claim);accord Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 n.9 (1stCir. 1990) (where police conduct is intentional, Fourth Amendment istriggered when police officer accidentally causes more severe harm thanintended). There is no dispute here that Officer Roussel intended to firehis gun at Parker 28 times. The shooting was not the result of any"mistake" or "negligence." Therefore, the jury reasonably found thatOfficer Roussel violated Parker's Fourth Amendment rights. Havinganswered the first prong of the qualified immunity inquiry in theaffirmative, the next inquiry is whether the right was "clearlyestablished" at the time of the shooting.[fn7] This court concludes thatit was.Page 14 2. The Right At Issue Was Clearly Established "The relevant, dispositive inquiry in determining whether a right isclearly established is whether it would be clear to a reasonableofficer that his conduct was unlawful in the situation he confronted."Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 2156,150 L.Ed.2d 272 (2001). This inquiry "must be undertaken in light of thespecific context of the case, not as a broad general proposition[.]"Id. at 201, 121 S.Ct. at 2156. The standards for theappropriate use of deadly force have been well established for more thanten years — since at least the U.S. Supreme Court decision inTennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701,85 L.Ed.2d 1 (1985) ("Where the suspect poses no immediate threat to theofficer and no threat to others, the harm resulting from failing toapprehend him does not justify the use of deadly force to do so.").See also Clem v. Corbeau, 284 F.3d 543, 554 (4th Cir. 2002)(where plaintiff offered evidence that he was "nondangerous" and that theofficer's firing of multiple shots at close range could have killed him,Tennessee v. Garner, decided in 1985, "clearly established" theunconstitutionality of the police shooting). As detailed above, there wasevidence to support the conclusion that it should have been apparent toOfficer Roussel that Parker was not dangerous. Thus, at the time OfficerRoussel shot Parker, it was clearly established that using deadly forceunder circumstances such as these amounted to the unlawful use ofexcessive force. Therefore, the second prong isPage 15satisfied as well and the court will now consider the third, andfinal, prong of the qualified immunity analysis. 3. Officer Roussel's Belief Was ObjectivelyUnreasonable "Because objective reasonableness is the touchstone of the excessiveforce inquiry, the constitutional and qualified immunity inquiries inthis area are closely intertwined." Jarrett v. Town ofYarmouth, 331 F.3d at 148. Nonetheless, these prongs "remaindistinct." Saucier v. Katz, 533 U.S. at 204, 121 S.Ct. at2158.[fn8] This is because the qualified immunity inquiry "has a furtherdimension," namely the concern that even when the officer accuratelyperceives the facts of the situation, "reasonable mistakes can be made asto the legal constraints on particular police conduct." Id. at205, 121 S.Ct. at 2158. At this stage of the analysis, "[t]he questionis what the officer reasonably understood his powers andresponsibilities to be, when he acted, under clearly establishedstandards." Id. at 208, 121 S.Ct. at 2159. Based on the evidence presented at trial, viewed most favorably toParker, no police officer could have reasonably believed that the lawallowed him to shoot at ParkerPage 1628 times under the circumstances. Again, the testimony was to theeffect that Parker had his hands out in front of him and was trying tosurrender, and that Officer Roussel overreacted, as well as failed toreassess the situation while continuously shooting. This is not asituation where qualified immunity is needed to protect Officer Roussel"from the sometimes hazy border between excessive and acceptableforce[.]" Id. at 206, 121 S.Ct. at 2158. For all these reasons, Officer Roussel is not entitled to qualifiedimmunity and his motion for judgment as a matter of law on Parker's claimbrought under 42 U.S.C. § 1983 is denied. C. Assault and Battery Officer Roussel has also moved for judgment as a matter of law onParker's pendant state law assault and battery claim. Officer Rousselcontends that, as a police officer effectuating an arrest, he wasentitled to use the amount of force reasonably necessary to subdueParker. He also argues that he is not liable because he acted in selfdefense. However, as detailed above, the evidence presented at trialsupports the conclusion that Officer Roussel exceeded the amount of forcehe was permitted to use. Assault and battery is the "`intentional and unjustified use of forceupon the person of another, however slight, or the intentional doing of awanton or grossly negligent act causing personal injury to another.'"Jesionowski v. Beck, 937 F. Supp. 95, 105 (D. Mass. 1996)(quoting Commonwealth v. McCan, 277 Mass. 199, 203,Page 17178 N.E. 633, 634 (1931)). "[A]n officer authorized to make an arrestmay use such force as is reasonably necessary to effect the arrest."Julian v. Randazzo, 380 Mass. 391, 396, 403 N.E.2d 931, 934(1980): accord Dean v. City of Worcester. 924 F.2d 364, 369(1st Cir. 1991) (internal citation and quotation omitted). The standardfor determining whether force is reasonable for assault and batteryclaims is "essentially the same" as the standard for determining if forceis reasonable for Fourth Amendment excessive force claims. Id. Because a plaintiff's "assault and battery claims will rise or fall inthe same manner as his Fourth Amendment claims," Jesionowski v.Beck, 937 F. Supp. at 105, this court, with the agreement of theparties, did not specifically instruct the jury on the assault andbattery claim. Rather, the parties agreed that judgment on the assaultand battery claim would parallel whatever verdict was returned on the§ 1983 excessive force claim. Thus, Officer Roussel's motion fails onthe assault and battery count for the same reasons the motion is deniedon the constitutional claim. Similarly, Officer Roussel's self defense claim fails since, in orderto use deadly force in self-defense, a person must have "reasonably andactually believed that he was in imminent danger of death or seriousbodily harm, from which he could save himself only by using deadlyforce." Commonwealth v. Pike, 428 Mass. 393, 396,701 N.E.2d 951, 955 (1998) (internal quotation and citation omitted).Such a belief is only reasonable if the victim threatens "an action thatwould cause the defendant serious bodily injury." Id.,Page 18701 N.E.2d at 955. Again, the evidence at trial supports theconclusion that Parker did not pose any such threat and Officer Roussel'smotion is denied on this claim as well. IV. CONCLUSION For the reasons detailed herein, Roussel's "Renewed Motion for Judgmentas a Matter of Law" (Docket # 130) is DENIED. MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR A NEW TRIAL[fn9] I. INTRODUCTION The plaintiff, Richard Parker ("Parker"), brought this action allegingthat his federal constitutional and state law rights were violated onFebruary 20, 1998 when he was shot a number of times by police followinga car chase which resulted in his arrest. Parker alleged several claimsagainst three individual Swansea police officers as well asPage 19against the Town of Swansea (the "Town") itself.[fn10] However, allof his claims except for those brought pursuant to 42 U.S.C. § 1983and the pendent assault and battery claims were either resolved at thesummary judgment stage or withdrawn during the trial. A jury returned averdict in favor of the Town and two of the police officers, WilliamMcGrath and Marc Haslam. Officer Richard Roussel ("Roussel") was foundliable for compensatory damages in the amount of $250,000; no punitivedamages were awarded. Presently before the court is Parker's"Motion for New Trial" (Docket#133) wherein he contends that this court committed prejudicial errorduring the trial by ruling as a matter of law that Swansea's deadly forcepolicy does not violate the Fourth Amendment; by allegedly preventing himfrom introducing evidence that the tactics the Town actually trained itsofficers to use when extracting potentially armed suspects from vehiclesdiffers from Swansea's written policy for that situation; and byallegedly improperly admitting hearsay documents. According to Parker,these errors entitle him to a new trial on all issues against defendantsWilliam McGrath, Marc Haslam, and the Town and to a new trial limited topunitive damages as to Roussel. In the instant motion, Parker also seeksan additur of $250,000 based on his conclusion that the amount of thejury's damages award is insufficient. For the reasons detailed herein,Parker's motion is DENIED.Page 20 II. DISCUSSION[fn11] A. Standard of Review A motion for a new trial pursuant to Fed.R.Civ.P. 59 "may be granted`for any of the reasons for which new trials have heretofore been grantedin actions at law in the courts of the United States . . .[.]'"Polycarbon Indus., Inc. v. Advantage Eng'g, Inc., 260 F. Supp.2d 296,303 (D. Mass. 2003) (quoting Fed.R.Civ.P. 59(a)(1)). Thedecision whether to grant a motion for a new trial is committed to thediscretion of the district court. See Cantellops v.Alvaro-Chapel, 234 F.3d 741, 744 (1st Cir. 2000). "It is, of course, within the discretion of the court to order a newtrial if it is convinced that a trial was manifestly unfair because of anerroneous ruling." Matton v. White Mountain Cable Constr.Corp., 190 F.R.D. 21, 23 (D. Mass. 1999), and cases cited. However,"[a] motion for a new trial is not to be taken lightly" and should onlybe granted "when an error occurred in the conduct of the trial that wasso grievous as to have rendered the trial unfair." MacNeill Eng'gCo., Inc. v. Trisport, Ltd., 126 F. Supp.2d 51, 63 (D. Mass. 2001)(internal citation and quotation omitted). The burden is on the movant toshow that the court "committed error and that the error rendered thetrial unfair." Id. at 64.Page 21 B. The Firearms Policy Parker first contends that this court erred by ruling as a matter oflaw that the Town's written deadly force policy, as found in its"Firearms" Policy (Trial Ex. 5),[fn12] comports with the requirements ofthe United States Constitution. Parker asserts that the deadly forcepolicy is both facially unconstitutional and unconstitutional as appliedto the facts of this case. For the reasons that follow, this courtdisagrees. The relevant portion of the Town's Firearms Policy reads as follows: GENERAL CONSIDERATIONS AND GUIDELINES Police officers are issued firearms, and trained in their use, for self-protection and for the protection of the public in the community in which they serve. The use of a firearm is the highest degree of force a police officer may apply and the decision to use a firearm, in the performance of his duties, is the most critical judgment a police officer is called upon to make. A police firearms policy should primarily reflect the fact that a police officer is authorized to use deadly force whenever it is reasonable and necessary to combat deadly force, used or threatened, if there is imminent danger of death or serious bodily injury to the officer himself, or to any other person unlawfully attacked. The use of firearms to effect the arrest of a known felon, or to prevent the escape of a fleeing felon, should be restricted to those offenses where deadly force has been used or threatened and where the police officer has reasonable cause to believe that death or serious bodily injury could result unless the felon is immediately apprehended. * * *Page 22 PROCEDURES 1. A police officer is authorized to use a firearm in the following circumstances if there is no other reasonable alternative available: a. to defend himself or another person from unlawful attack when he has reasonable cause to believe there is imminent danger of death or serious bodily injury; b. the use of deadly force (including firearms) to effect an arrest is not justifiable unless; i. the arrest is for a felony; and ii. the officer believes that the force employed creates no substantial risk of injury to innocent persons; and iii. the officer has probable cause to believe that: (a) the crime for which the arrest is made involved conduct indicating the use or threatened use of deadly force; or (b) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed. See Comm. v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977 and Julian v. Randazzo, 380 Mass. 391, 403 N.E.2d 931 (1980). . . .(Trial Ex. 5 at 13-1-13-2) (emphasis in original). Parker assertsthat section (1)(b)(iii)(a) violates the standard set forth by the U.S.Supreme Court in Tennessee v. Garner, 471 U.S. 1,105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), because it allows officers to use deadlyforce regardless of whether the suspect poses an immediate threat ofphysical harm to the officer or others. This contention fails for severalreasons.Page 23 In Tennessee v. Garner, the Court addressed the issue of whenpolice officers may use deadly force to prevent the escape of a fleeingsuspect in accordance with the Fourth Amendment. The Court held that"[t]he use of deadly force to prevent the escape of all felony suspects,whatever the circumstances, is constitutionally unreasonable. . . .Where the suspect poses no immediate threat to the officer and no threatto others, the harm resulting from failing to apprehend him does notjustify the use of deadly force to do so." Id. at 11, 105 So.Ct. at 1701. However, "[w]here the officer has probable cause to believethat the suspect poses a threat of serious physical harm, either to theofficer or to others, it is not constitutionally unreasonable to preventescape by using deadly force." Id. Parker focuses on the language of § l(b)(iii)(a) and argues thatthe Policy allows an officer to use deadly force absent a threat of harm.This argument misconstrues the Policy. When read as a whole, it is clearthat the Firearms Policy only authorizes the use of deadly force when thesuspect poses a threat to the officer or others, consistent with theteachings of Tennessee v. Garner. The "General Considerationsand Guidelines," which modify the specific "Procedures," emphasize thatthe Firearms Policy "primarily reflect[s]" the fact that before deadlyforce can be used by an officer, it must be "reasonable and necessaryto combat deadly force, used or threatened, if there is imminent dangerof death or serious bodily injury to the officer himself, or to any otherpersonPage 24unlawfully attacked." (Trial Ex. 5 at 13-1). Parker's attempt toread the specific "Procedures" in isolation distorts the clear languageof the Policy, and is without merit. Moreover, in Tennessee v. Garner, the Court cited withapproval the American Law Institute, Model Penal Code's standard for theuse of deadly force. See Tennessee v. Garner, 471 U.S. at15-17, 105 S.Ct. at 1703-04. Massachusetts, the Supreme Court noted,basically adopted the Model Penal Code's standard in the cases ofCommonwealth v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977)and Julian v. Randazzo, 380 Mass. 391, 403 N.E.2d 931 (1980).See Tennessee v. Garner, 471 U.S. at 17 n.17, 105 S.Ct. at1704 n.17. These cases are cited in the Town's Firearms Policy, as quotedabove. Moreover, the Model Penal Code's standard is substantivelyidentical to the standard enumerated in the Firearms Policy.See Model Penal Code § 3.07(2)(b) (Official Draft 1962);see also Tennessee v. Garner. 471 U.S. at 6 n.7, 105 S.Ct. at1699 n.7. Parker's contention that the Firearms Policy is inconsistentwith Tennessee v. Garner is without merit. Finally, even assuming, arguendo, that § l(b) of theFirearms Policy could be unconstitutionally applied under somecircumstances, this is not such a case. Thus, Parker contends that thepolice acted improperly in shooting him to prevent him from fleeingbecause he was not being arrested for a felony, nor was he being arrestedfor a crime which "involved conduct indicating the use or threatened useof deadly force[.]" (Trial Ex. 5 §§ 1(b)(i) & 1(b)(iii)(a)).However, the only evidence presented was to thePage 25effect that the officers did not shoot because they feared Parkerwas fleeing, but, rather, shot because they thought Parker was armed andperceived him as an immediate threat to themselves and others. Parkerhimself testified that the officers thought he had a gun. Shooting inself-defense is consistent with both Tennessee v. Garner andthe Firearms Policy § 1(a) regardless of whether the underlyingcrime is a felony. (See Trial Ex. 5 § 2(b) (officer notauthorized to use a firearm "to effect an arrest for a misdemeanor,except as provided in paragraph l(a)")). Thus, Parker's contention thatthe officers erroneously concluded that he had committed a felony, whichaccording to Parker is the only category of crimes for which they couldhave used deadly force, is unavailing. For all these reasons, theFirearms Policy is neither facially unconstitutional norunconstitutional as applied in this case and Parker's motion is denied onthese grounds.C. The High Speed Pursuit Policy Parker next argues that this court erred by preventing him fromintroducing evidence that the Town's policies relating to "high risk"motor vehicle stops, which identify tactics officers are to use whenextracting potentially dangerous suspects from the suspect's vehicle,differed from the training the Town's officers actually received.Consequently, argues Parker, he was precluded from establishing theTown's liability based on improper training. However, the court did notlimit Parker in the manner he claims and his motion is denied on thisbasis.Page 26 The Town's policies are included in a written "High Speed Pursuit"Policy, (in particular § 16(d) thereof). The entire Pursuit Policywas admitted as Trial Ex. 6 early in the case. Parker had the Policy whenhe questioned each individual defendant as to whether their actions inextracting Parker from his jeep were consistent with the training theyreceived. In addition, Parker called his own expert to testify to the generallyaccepted methods in the law enforcement field for conducting such highrisk stops and extensively cross-examined the defendants' correspondingexpert on this subject. Parker also questioned these experts as towhether the defendants' actions comported with the Town's Pursuit Policy.The jury was thus well equipped to juxtapose the defendants' trainingwith § 16(d) of the Pursuit Policy. While the jury, by returning averdict in the Town's favor, obviously disagreed with Parker that theofficers' training in this area was unconstitutional, Parker was in noway prevented from presenting his case. Therefore, Parker's motion for anew trial on this basis is denied. D. The Mental Health Records Parker also contends that the court improperly admitted into evidencesome records of his pre and post-incident mental health treatment (TrialEx. 23)[fn13] because thePage 27(unspecified) records are unfairly prejudicial, inadmissiblehearsay, and contain statements for which the declarant has not beenidentified. Because each of these arguments lacks merit, Parker's motionis denied on this ground. As an initial matter, the court spent a great deal of time reviewingthe records during the trial after Parker made generalized objections tosome of the records while seeking the admission of others. After weighingthe probative value of the mental health records against any unfairlyprejudicial effect of admitting the evidence, this court found, andcontinues to find, that the records as redacted by the court wereproperly admitted. See, e.g., United States v. Carlos Cruz, ___F.3d ___, 2003 WL 22972958, at *4 (1st Cir. Dec. 19, 2003) (districtcourt has discretion in balancing probative value against unfairlyprejudicial effect) (citing Fed.R.Evid. 403). The records are relevantto Parker's claims for damages, which include claims for psychologicalharm and inability to work, both allegedly attributed to the shooting.The records contained in Exhibit 23 are relevant on the issue whetherthese damages were caused by the shooting, as well as to the existenceand extent of any damages. Parker cannot now argue that it wasprejudicial for the jury to learn that he had a substance abuse problemand had participated in mental health treatment before the incident sincehe himself opened the door to these topics by testifying to both of thesefacts, including the fact that he had been hospitalized for psychiatricissues shortly before the incident. Parker also called his treatingpsychologist,Page 28Dr. Willie Coleman, who testified to Parker's substance abuse andpre and post-incident mental health, which further put these subjects atissue. Moreover, the records were redacted to remove any highly inflammatoryinformation, such as Parker's involvement with the police and/or legalsystem based on events not related to this lawsuit. The court also issueda limiting instruction to the jury that the mental health records werenot evidence of what occurred on February 20, 1998. Therefore, this courtconcludes that Parker's argument that the admission of the records wasunduly prejudicial is without merit. Equally unpersuasive is Parker's objection to the records asconstituting "hearsay opinion declarations." The records themselves areadmissible as business records pursuant to Fed.R.Evid. 803(6), whichallows for the admission of "opinions, or diagnoses." The statements inthe documents are attributed to identifiable declarants. Each medicalrecord bears the name of the individual(s) entering the information, atleast one of whom was deposed prior to trial. Such identifyinginformation, which establishes that the entries were made by, or containinformation conveyed by, "persons with knowledge," supports theconclusion that the documents are admissible as valid business records.See Petrocelli v. Gallison, 679 F.2d 286, 289-91 (1st Cir.1982) (while complete absence of any indication as to where informationin medical records came from rendered entry inadmissible, with properidentification of declarant medical records may be admissible underRule 803(6) while patient statements contained in such records couldPage 29be admissible based on combination of Rules 803(6) and 803(4)).Similarly, the documents identify the individuals unaffiliated with thehospital who provided information contained in the reports, includingParker and his father. These statements constituted "[s]tatements madefor purposes of medical diagnosis or treatment" and are admissible inaccordance with Fed.R.Evid. 803(4). (See, e.g., Trial Ex. 23at 8, 20, 52, 59, 104, 152). For all these reasons, Parker's motion for anew trial based on the improper admission of Exhibit 23 is denied. E. The Amount of the Jury's Damages Award Finally, Parker contends that the jury's damages award is inadequateand asks this court for an additur of $250,000. Because additur isconstitutionally proscribed and because the jury's damages award wasrationally based on the evidence, Parker's motion is denied. Pursuant to the Seventh Amendment of the U.S. Constitution, "[i]n suitsat common law, where the value in controversy shall exceed twentydollars, the right of trial by jury shall be preserved, and no fact triedby a jury, shall be otherwise reexamined in any Court of the UnitedStates, than according to the rules of the common law." Because it iswell settled that "the Seventh Amendment flatly prohibits federal courtsfrom augmenting jury verdicts by additur," Parker cannot obtainadditional damages on this basis. Campos-Orrego v. Rivera,175 F.3d 89, 97 (1st Cir. 1999) (citing Dimick v. Schiedt,293 U.S. 474, 486-87, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935)).Page 30 Nevertheless, an "inadequate damages award may constitute sufficientreason for a new trial." Phav v. Trueblood. Inc., 915 F.2d 764,766 (1st Cir. 1990). However, the party challenging the award, especiallyan award for personal injuries, "bears a particularly heavy burden" andthe court "rarely will override the jury's judgment on the appropriateamount of damages to be awarded." Milone v. Moceri Family.Inc., 847 F.2d 35, 37 (1st Cir. 1988) (internal citation andquotation omitted). As stated by the First Circuit, the jury "is free torun the whole gamut of euphonious notes — to harmonize the verdictat the highest or lowest points for which there is a sound evidentiarypredicate, or anywhere in between — so long as the end result doesnot violate the conscience of the court or strike such a dissonant chordthat justice would be denied were the judgment permitted to stand."Id. Accordingly, invalidating a jury's award is appropriateonly where "after scanning the evidence in the light most congenial tothe nonmovant," the verdict falls below "any rational appraisal orestimate of the damages that could be based on the evidence before thejury." Id. at 37-38 (internal citation and quotation omitted).Accord Gil de Rebollo v. Miami Heat Assocs., Inc., 137 F.3d 56,62 (1st Cir. 1998) ("Where the allegation of an improper verdict is basedsolely on the amount of the damage award, the circumstances under which atrial court may overturn a verdict are more limited."). This is not sucha case. Here, the jury had before it all the evidence, including Parker'smedical bills (Trial Ex. 19). At the most, these bills totaled $139,053.71. The jury returned a verdict inPage 31Parker's favor for $250,000 in compensatory damages. Even fullyvaluing the medical expenses, this award is substantially higher thansuch expenses alone and is rationally based on the evidence. Parker does not offer any basis to support his contention that thisaward is inadequate. He merely asserts, in a conclusory manner, thatbecause he was shot eight times and proved $189,000 in "special damages,"the jury's award is grossly deficient. However, he fails to explain howhe proved $189,000 in damages, why the amount awarded is too low, or whythe extra $250,000 is necessary to redress his injuries. Parker's baldassertions are simply not enough to carry his "particularly heavy burden"and his motion is denied as to the damages award. The award does not"violate the conscience of the court," nor does the court find that"justice would be denied were the judgment permitted to stand."Milone v. Moceri Family. Inc., 847 F.2d at 37. III. CONCLUSION For the reasons detailed herein, Parker's "Motion for New Trial"(Docket #133) is DENIED.

2. Parker also originally named an individual officer from theSomerset Police Department and the Town of Somerset as defendants.However, the Town of Somerset prevailed on its motion for summaryjudgment on all counts alleged against it, and the Somerset defendantsall settled with the plaintiff shortly before trial.

3. The following Statement of Facts is based on the evidencepresented at trial and is limited to those facts relevant to the instantmotion. Additionally, the facts are viewed in the light most favorable toParker. See, e.g., Cruz-Vargas v. R.J. Reynolds Tobacco. Co.,348 F.3d 271, 275 (1st Cir. 2003) (when evaluating motion for judgment asa matter of law, court must read the evidence in the light most favorableto the jury verdict).

4. At trial, Officer McGrath testified that he had also pulledParker over shortly before the traffic stop described herein, but thatParker fled the scene during that stop as well. Parker did not testify asto this first stop one way or the other. Ultimately, the number of timesParker was pulled over that morning is immaterial to the resolution ofthis motion.

5. The qualified immunity standard has also been described as "atwo-part test" because courts sometimes "merge the second and thirdprongs of the immunity analysis." Tremblay v. McClellan,350 F.3d 195, 199-200 (1st Cir. 2003). Notwithstanding these differentdescriptions, courts ultimately consider the same factors.

6. Although Roy and some of the other cases cited in thiscourt's analysis of the first prong of the qualified immunity standardevaluated the officers' conduct in connection with "objectivereasonableness" as it relates to the third prong of the analysis,"[b]ecause objective reasonableness is the touchstone of the excessiveforce inquiry, the constitutional and qualified immunity inquiries inthis area are closely intertwined," and, thus, case law addressingexcessive force claims "may be instructive even if these claims wereultimately resolved on qualified immunity grounds" as opposed to on themerits of the constitutional question itself. Jarrett v. Town ofYarmouth, 331 F.3d at 148.

7. Officer Roussel also attempts to shift the focus of the "intent"analysis by arguing that his actions in approaching the jeep cannot formthe basis of liability since, at most, the approach was negligent.However, the § 1983 claim is not based on Officer Roussel's actionsin approching the jeep but on his firing at Parker 28 times after Parkerexited the jeep.

8. It has been noted that qualified immunity "is a difficultconcept" that "inherently makes for confusion" since "it looks to thereasonableness of an officer's belief that he acted lawfully after theofficer is found to have been unreasonable in his conduct."Stephenson v. Doe, 332 F.3d 68, 80 n.15 (2d Cir. 2003), andcases cited: accord Saucier v. Katz, 533 U.S. at 210, 121 So.Ct. at 2160-61 (Ginsberg, J. concurring) (multi-part inquiry in excessiveforce/qualified immunity cases "holds large potential to confuse" as "thedetermination of police misconduct in excessive force cases and theavailability of qualified immunity both hinge on the same question:Taking into account the particular circumstances confronting thedefendant officer, could a reasonable officer, identically situated, havebelieved the force employed was lawful?").

9. The parties consented to transfer the case to this court for allpurposes, including trial and the entry of final judgment, pursuant to28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

10. Parker also originally named an individual officer from theSomerset Police Department and the Town of Somerset as defendants.However, the Town of Somerset prevailed on its motion for summaryjudgment on all counts alleged against it, and the Somerset defendantssettled with the plaintiff shortly before trial.

11. The facts underlying this case are detailed in this court'sMemorandum of Decision and Order on Defendant Richard Roussel's RenewedMotion for Judgment as a Matter of Law also issued on this date, and willnot be repeated herein. However, references will be made to additionalfacts as needed in connection with the specific grounds raised in thismotion.

12. The Town's general "Use of Force" policy (Trial Ex. 4) islimited to "non-deadly force" which is defined as "that degree of forcewhich in the circumstances is neither likely nor intended to cause greatbodily harm[.]" (Id. § l(a)). Consequently, the use offirearms is treated in a separate "Firearms" policy (see id.§ l(b)) which was admitted as Trial Ex. 5.

13. Although Exhibit 23 is marked as a "Plaintiffs Exhibit" [sic],the records ultimately admitted were those found admissible by the courtafter an extensive meeting with the parties outside the presence of thejury, and include records proposed by all parties. After it became clearthat the plaintiff had the same general objections to many of thedocuments, the court took the remainder of the documents underadvisement, reviewed them, redacted portions, and collectively marked therecords as a plaintiff's exhibit. While the parties' objections are onthe record, the lengthy meeting was not all on the record.

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