Marsall v. City of Portland

Full title: CAROL A. MARSALL, as Personal Representative of the Estate of Damon Ivan…

Court: United States District Court, D. Oregon

Date published: May 7, 2004

CV-01-1014-ST (D. Or. May. 7, 2004)

Opinion

CV-01-1014-ST.

May 7, 2004

OPINION AND ORDER

JANICE STEWART, Magistrate Judge

INTRODUCTION

In the early morning hours of December 5, 1999, Damon Lowery ("Lowery") consumed hallucinogenic mushrooms, fought with a friend, and, when police officers arrived, jumped or fell out of a second story plate-glass window onto a concrete patio. Lowery was surrounded by seven officers, and although unarmed and severely injured, was shot ten times with a "less lethal" shotgun, sprayed with at least six cans of pepper spray, hit numerous times with ASP batons, and finally was forced into the maximum restraint position while an officer stood on his upper body and head. He died at the scene.

Plaintiffs, Damon Lowery's parents, filed this action against defendants, the City of Portland and seven of its police officers, on behalf of his estate and themselves. Plaintiffs contend that the officers were not adequately trained regarding contact with, and restraint of, emotionally disturbed persons who are at risk of sudden death syndrome. As a result, they claim that the officers used excessive force throughout the encounter, which exacerbated the dangers inherent in the situation and precipitated the violent outcome of Lowery's death.

Defendants respond that the force used was reasonable and necessary to gain physical control of Lowery so that he could receive medical attention. Gaining control of him was difficult due to his drug-induced psychosis and inability to feel pain. Lowery refused to follow directions, became violent, and physically resisted them, which defendants contend justified the use of force to overcome his resistance. According to defendants, Lowery died from loss of blood caused by his self-inflicted injuries, not from excessive force.

By the time of trial in September 2003, the only issues remaining in this case were: (1) whether the officers used excessive force on Lowery in violation of his Fourth Amendment rights; and, if so (2) whether the excessive force caused Lowery's death; (3) whether the excessive force was a result of the City of Portland's failure to adequately train its officers; and (4) the amount of damages suffered by Lowery. After hearing eight days of testimony and argument, the jury returned a verdict finding that defendants did not use excessive force.

Now pending is plaintiffs' Motion for Judgment as a Matter of Law, or in the Alternative, Motion for New Trial (docket #196) and defendants' Cost Bill (docket #194). Plaintiffs seek judgment in their favor or, in the alternative, a new trial on the issue of whether defendants used excessive force on Lowery. In addition, plaintiffs seek a new trial due to inconsistencies between the first and second verdict forms.

A review of the evidence in the light most favorable to defendants reveals one particularly critical fact, namely that at some point during the encounter, Lowery mustered the ability to charge and injure defendant Dalberg.¹ Prior to that event, the evidence is insufficient to allow a reasonable juror to conclude that the amount of force used was anything other than excessive, given that Lowery was severely injured, unarmed, emotionally or mentally disturbed, and had not attacked or even verbally threatened defendants. As a result, plaintiffs are entitled to a judgment as a matter of law on the initial four or five "less lethal" shots and the use of the first three cans of pepper spray. However, once Lowery charged and injured defendant Dalberg, a reasonable jury could conclude that Lowery posed a significantly greater risk to defendants, making judgment as a matter of law for plaintiffs inappropriate as to the subsequent use of force.

1 Some defendants testified that Lowery rushed or charged defendant Dalberg and tried to tackle him. Plaintiffs argued that Lowery was simply trying to avoid further injury by defendants and may have blindly run into defendant Dalberg. Whatever was Lowery's intent, he did not successfully tackle defendant Dalberg. See Dalberg Testimony, p. 11, lines 9-12. At most, he grabbed defendant Dalberg around the waist area (in the area of his gun), and then defendant Dalberg spun out of the way. Id; Gradwahl Testimony, p. 37, lines 5-13 p. 68, lines 4-6. In the process of spinning out of the way, defendant Dalberg sprained his knee. Dalberg Testimony, p. 11, lines 20-22. For purposes of plaintiffs' motion, this court views the evidence most favorably for defendants.

In the alternative, this court erred by failing to instruct the jury that: (1) it could find that the use of force was excessive at any point during Lowery's encounter with defendants, and not at other points; (2) a strong governmental interest is required to justify the use of "less lethal" shots, pepper spray, and standing on a person who is in the maximum restraint position; and (3) if the initial use of "less lethal" shots and pepper spray provoked Lowery, then the subsequent force used by defendants to restrain Lowery also could be unreasonable — even if otherwise reasonable. Although plaintiffs did not request these jury instructions, they were necessary to prevent a miscarriage of justice. This court prefers to avoid another lengthy and costly trial, but cannot due to these plain errors.

For these reasons, as discussed more fully below, this court grants in part and denies in part plaintiffs' motion and orders a new trial.

ANALYSIS

I. Legal Standards A. Motion for Judgment as a Matter of Law

Pursuant to FRCP 50(a), a court should render judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." A court may, however, reserve decision on the legal issues presented until after a jury renders its verdict and the motion is renewed. FRCP 50(b).

The trial court can set aside the jury verdict and grant judgment as a matter of law "only if . . . there can be but one reasonable conclusion as to the verdict." Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1282 (9^th Cir 2001), cert dismissed, 537 U.S. 1098 (2003). Specifically, judgment as a matter of law should not be granted unless:

(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fairminded [persons] could not arrive at a verdict against [him].

Meloff v. New York Life Ins. Co., 240 F.3d 138, 145 (2^nd Cir 2001).

Moreover, when considering a motion to set aside a jury verdict, the court "should review all of the evidence in the record" and "must draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000) (citations omitted). It "may not make credibility determinations or weigh the evidence" and "must disregard all evidence favorable to the moving party that the jury is not required to believe." Id.

After giving credence to the evidence favoring the nonmovant, as well as uncontradicted and unimpeached evidence favoring the moving party, the court must ask:

whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented. The mere existence of a scintilla of evidence in support of the [non-movant]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by [the] evidence that the [non-movant] is entitled to a verdict. . . .

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

B. Motion for New Trial

The party moving for judgment as a matter of law under FRCP 50(b) may join an alternative motion for a new trial under FRCP 59. Where both motions are before the court following a jury verdict, the court may either "(A) allow the judgment to stand; (B) order a new trial, or (C) direct entry of judgment as a matter of law." FRCP 50(b)(1). If the court grants the renewed motion for judgment as a matter of law, then it "shall also rule on the motion for a new trial . . . and shall specify the grounds for granting or denying the motion for the new trial." FRCP 50(c)(1).

Although substantial evidence supporting the verdict bars judgment as a matter of law, it does not prevent a court from granting a new trial. Oltz v. St. Peter's Community Hosp., 861 F.2d 1440, 1452 (9^th Cir 1988). The court has a duty to grant a new trial if the verdict is against the clear weight of the evidence such that the court "is left with the definite and firm conviction that a mistake has been committed by the jury." Landes Const. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9^th Cir 1987). The court need not presume that the verdict is correct nor view the evidence in the light most favorable to the prevailing party. Id. Instead, the court must weigh the evidence and assess for itself the credibility of the witnesses. Murphy v. City of Long Beach, 914 F.2d 183, 187 (9^th Cir 1990).

II. Excessive Force Claim

Pursuant to FRCP 50(b), plaintiffs move for judgment as a matter of law and, in the alternative, for a new trial under FRCP 59 on the issue of whether defendants used excessive force on Lowery.

A. Framework for Analyzing Excessive Force Claims

An officer's use of force in any "seizure" of a person is analyzed under the Fourth Amendment's "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 388 (1989). The reasonableness of the force used to effect a particular seizure is determined by "careful[ly] balancing . . . `the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id at 396, quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985). As the Ninth Circuit has held, "the force which [is] applied must be balanced against the need for that force." Liston v. County of Riverside, 120 F.3d 965, 976 (9^th Cir 1997). "Less than deadly force, like deadly force, may not be used without sufficient reason; rather it is subject to the Graham balancing test." Deorle v. Rutherford, 272 F.3d 1272, 1284-85 (9^th Cir 2001), cert denied 536 U.S. 958 (2002), citing Chew v. Gates, 27 F.3d 1432, 1442 (9^th Cir 1994).

The first step in the balancing process is to assess the quantum of force used by considering the type and amount of force inflicted. Id at 1279 (citations omitted). By determining the quantum of force involved, the court can determine how much of a governmental interest is required to justify the employment of such force. See id at 1280.

Step two measures the governmental interests at stake by evaluating the " Graham factors," namely: "(1) the severity of the crime at issue, (2) whether the suspect pose[d] an immediate threat to the safety of the officers or others . . . (3) whether [the suspect was] actively resisting arrest or attempting to evade arrest by flight, and any other exigent circumstances [that] existed at the time of the arrest." Id (internal citations and quotations omitted). Furthermore, the suspect's mental illness or emotional condition must be reflected in any assessment of the governmental interest in the use of force. Drummond v. City of Anaheim, 343 F.3d 1052, 1058 (9^th Cir 2003).

These factors are simply a means by which to determine objectively "the amount of force that is necessary in a particular situation." Graham, 490 US at 396-97. The key issue is the need for force: "[t]he force which was applied must be balanced against the need for that force: it is the need for force which is at the heart of the Graham factors." Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185, 1204 (9^th Cir 2000), vacated and remanded on other grounds, County of Humboldt v. Headwaters Forest Defense, 534 U.S. 801 (2001), citing Liston, 120 F.3d at 976 (quoting Alexander v. City and County of San Francisco, 29 F.3d 1355, 1367 (9^th Cir 1994)) (emphasis in original). Thus, where there is no need for force, any force used is constitutionally unreasonable. See P.B. v. Koch, 96 F.3d 1298, 1303-04 n 4 (9^th Cir 1996).

Finally, in step three, the conflicting interests are weighed to determine whether the degree of force used was warranted by the governmental interests at stake. Deorle, 272 F.3d at 1282, citing Graham, 490 US at 396. The reasonableness inquiry is an objective one: the question is whether the officers' actions were objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Graham, 490 US at 397. An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. Id. Moreover, the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id at 396.

Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers . . . violates the Fourth Amendment . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced 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.

Id at 396-97 (internal citations and quotations omitted).

B. Motion for Judgment as a Matter of Law

Defendants used different types of force at different times in their encounter with Lowery. Because plaintiffs sought damages arising not only from excessive force which caused Lowery's death, but from excessive force used prior to his death, the analysis must focus on each separate use of force by defendants.

1. Use of "Less Lethal" Shots and Pepper Spray Prior to Lowery Charging Defendant Dalberg

When the first two officers arrived, Lowery's friend, David Boyle ("Boyle"), met them outside the house and told them that Lowery had consumed hallucinogenic mushrooms and fought with him, but had not used any weapons. The officers could hear Lowery inside the house throwing things, talking to himself, and making strange unintelligible grunting noises. After the officers pushed open the front door and shouted commands, Lowery jumped or fell out of a second story plate-glass window onto a concrete patio.

As he was lying face down on the ground severely injured and motionless, possibly unconscious, with his arms and hands out to his sides, six defendants surrounded him. Defendant Ladd stood nearby aiming a "less lethal" shotgun at him. Defendants saw no weapon in Lowery's hands.

When Lowery made a noise, moved his hands towards his waistband and started growling and screaming, the officers backed away. Lowery did not comply with commands to stay on the ground with his hands out, palms up, and ankles crossed, and instead started to push up onto his left leg with his fists clenched. Although Lowery did not threaten or attack anyone, and before he could get up off the ground, defendant Ladd shot him four or five times with "less lethal" shots and three defendants emptied their entire canisters of pepper spray in his face.² a. Nature and Quality of the Intrusion i. "Less Lethal" Shots

2 A more detailed summary of the facts construed in defendants' favor is contained in the Appendix.

Defendant Ladd shot Lowery with a model 3000 Smith Wesson 12-gauge shotgun loaded with shotgun shells containing lead-filled sacks (commonly referred to as beanbags). Ladd Testimony, p. 4, lines 14-16 pp. 19-21. When fired, the lead-filled sacks travel at a speed of 300 feet per second and impact the human body with force sufficient to cause serious injury or death. Id, pp. 21-22; Livingston Testimony, p. 13, lines 8-15; Exhibit 149 (Portland Police Bureau Training Video). The recommended range for firing the weapon is 30 to 75 feet, and the lead-filled rounds are more likely to cause death or serious injury if fired from closer than the minimum recommended distance of 30 feet. Ladd Testimony, p. 22, lines 9-17; Exhibit 149. The purpose of the weapon is to neutralize dangerous suspects who are on their feet carrying a weapon, like a knife or a baseball bat, and threatening harm to officers or others. Livingston Testimony, p. 13, line 19-p. 14, line 5; Exhibit 149.

The cloth-cased shots fired by a "less lethal" shotgun fall short of deadly force. Deorle, 272 F.3d at 1280. Nonetheless, the Ninth Circuit recognizes that a single cloth-cased shot constitutes force sufficient to cause serious injury. Id. "Less than deadly force that may lead to serious injury may be used only when a strong governmental interest warrants its use, and in such circumstances, should be preceded by a warning, when feasible." Deorle, 272 F.3d at 1285, citing Chew, 27 F.3d at 1442-43. As a result, the use of a "less lethal" shotgun is "permissible only when a strong government interest compels the employment of such force." Id at 1280. This is particularly true when several shots are fired.

ii. Pepper Spray

Each canister of pepper spray used on Lowery contained 12 continuous seconds of spray. Gradwahl Testimony, p. 28, line 25 — p. 29, line 2. Defendants are trained to use a single, onesecond burst of pepper spray on a person to determine if it has any effect. Livingston Testimony, p. 38, lines 6-9. If it has no effect, officers are trained to move on to other alternatives. Katsaris Testimony, p. 43, lines 18-22. Pepper spray, which is derived from cayenne pepper extract, causes acute burning of the eyes and skin, involuntary closing of the eyelids, swelling of the mucus membranes, difficulty breathing, and disorientation. Gradwahl Testimony, p. 29; Dalberg Testimony, p. 10.

The Ninth Circuit has held that the intrusion caused by pepper spray is certainly "more than minimal." Headwaters Forest Defense, 240 F.3d at 1200. Pepper spray is a "dangerous weapon" under the criminal sentencing guidelines because it is "capable of inflicting death or serious bodily injury." United States v. Neil, 166 F.3d 943, 949 (9^th Cir), cert denied, 526 U.S. 1153 (1999). Considering the pain, irritation, swelling, difficulty breathing, loss of control and disorientation that pepper spray can cause, especially if used in the large amounts involved in this case, there is no doubt that the quantum of force used on Lowery was substantial. Thus, the government also needed a strong interest to warrant the use of this large a volume of pepper spray on Lowery. b. Government Interests at Stake

For the reasons set forth below, at the time defendant Ladd fired the first four to five "less lethal" shots and the other officers used the first three cans of pepper spray, the governmental interest in using that initial force was not strong.

i. The Deorle Precedent

In Doerle, the Ninth Circuit addressed the use of "less lethal" force in circumstances similar to those in this case. After receiving an upsetting medical diagnosis and consuming a pint of vodka with his prescription medication, Deorle began behaving erratically. When he became suicidal, his wife called the police and left the house. After the police arrived, Deorle refused to let the officers into the house without a warrant. Eventually at least 13 police were called to the scene and set up a roadblock around the house to ensure Deorle could not escape until a team of specially trained negotiators arrived.

Deorle, though verbally abusive, was physically compliant and generally followed all the officers' instructions. When a canine team "tested" his behavior by making their police dog bark aggressively at Deorle, he retreated towards his house. When a wooden board from the porch railings came away in his hands, Deorle dropped it at the officers' command Although shouting "kill me" and brandishing a hatchet at a police officer, he threw the hatchet away into a clump of trees when told to put it down. Still, Deorle remained agitated and continued to roam on or about the property, but well within the police roadblocks. Because Deorle was wearing no shirt or shoes and only a pair of cut-off jeans, he had nowhere to conceal any weapons.

Officer Rutherford, who was at the scene for 30-40 minutes, did not observe Deorle touch, let alone attack, anyone, and did not receive any report of any such action by Deorle. He did, however, hear Deorle scream at him that he would "kick his ass." Rutherford was trained in the deployment of force against recalcitrant suspects, though he was not part of the special negotiations team called to the scene.

After a briefing by his superiors and consultation with another officer on the scene, Rutherford decided to reconnoiter closer to Deorle, although the negotiators assigned to handle the incident had not yet arrived. Accompanied by two other officers, Rutherford observed Deorle for about five to ten minutes from the cover of some trees before Deorle, carrying an unloaded plastic crossbow in one hand and what appeared to be a can or a bottle of lighter fluid in the other, started shouting at the officers. Rutherford was armed with a 12-gauge "less lethal" shotgun. In response to Deorle's taunts, Rutherford shouted at him to put down the crossbow and Deorle discarded it. Eventually, according to Rutherford, Deorle:

walk[ed] directly at me at a steady gate. . . . He didn't run at me, he didn't take his time getting to me, it was just a steady walk directly at me. . . . Once he started walking towards me I took a little wider stance with my feet to get a good stable base. As I leaned my weapon up against the tree to make it more stable and I focused on his lower right rib area as he was walking towards me for a target area.

Id at 1278.

Rutherford had stationed himself in a garden adjacent to Deorle's house. He waited until Deorle reached a predetermined point and then fired without warning. He did not ask Deorle to drop the bottle or can or order him to halt. The cloth-cased shot struck Deorle in the face, causing severe injuries.

Holding that Rutherford's use of the "less lethal" shotgun was excessive force, the Ninth Circuit rejected his qualified immunity defense and denied his summary judgment motion. After reviewing the Graham factors, the court found no substantial governmental interest in using a "less lethal" shotgun capable of causing serious injury.

First, the character of the offense did not raise significant police concerns because the officers arrived not to arrest Deorle, but to investigate his peculiar behavior. Moreover, he was "clearly a deeply troubled, and emotionally disturbed individual," as indicated by his request that the officers shoot him. Id at 1280-81.

Second, the threat to the safety of the officers and the risk of flight were low. Rutherford testified that he shot Deorle to prevent the latter from passing him and thereby posing a menace to himself, other officers, and the public. The court rejected this explanation for the use of force:

A desire to resolve quickly a potentially dangerous situation is not the type of governmental interest that, standing alone, justifies the use of force that may cause serious injury. There must be other significant circumstances that warrant the use of such a degree of force at the time it was used . . . [A] simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern. In short, an officer's use of force must be objectively reasonable based on his contemporaneous knowledge of the facts.

Id at 1281.

Rutherford observed Deorle at close proximity for some time, occupied a secure position, and knew that Deorle was willing to follow police commands. Yet Rutherford arbitrarily chose a selected distance at which to shoot and shot without warning once that point was crossed. The court found that "Rutherford could easily have avoided a confrontation, and awaited the arrival of the negotiating team by retreating to his original position behind the roadblock. Nothing in the record suggests that Rutherford considered other, less dangerous, methods of stopping Deorle." Id at 1282, citing Headwaters Forest Defense, 240 F.3d at 1204 (holding that, before deploying pepper spray, police "were required to consider what other tactics if any were available to effect the arrest" (internal citations and quotations omitted)).

ii. Application of Deorle

For most of the same reasons as in Deorle, no strong governmental interests were at stake in the confrontation with Lowery before he charged defendant Dalberg. First, the character of the offense was minor. The police were called to the scene to respond, at most, to a complaint of assault made during a fight between two friends. The officers did not consider it to be a felony situation and were not planning on arresting Lowery, but on getting him medical attention. Boyle made the officers aware that Lowery had taken hallucinogenic mushrooms and had not used any weapons. Defendants knew that Lowery was emotionally disturbed when they heard him yelling at people who were not there and stating that he was worthless while also making strange, unintelligible grunting noises.

Second, the risk to the officers and the public was low. Defendants contend that Lowery's attempt to get up and refusal to open his hands constituted a threat to them. Unlike Doerle, Lowery failed to comply with the officers' commands. However, his actual threat to the officers and to the general public was far lower than posed by Deorle. At no point did any of the officers observe Lowery with a weapon and, indeed, defendant Ladd admitted that he "had no reason to believe that [Lowery] had a weapon in his hand at that time." Ladd Testimony, p. 27, lines 9-14 (emphasis added). Although Lowery's fists were clenched, the only possible weapon small enough to conceal in his fists was perhaps a piece of glass defendant Holthausen saw him use to cut himself or perhaps a razor blade³ — unlike the wooden beam, hatchet, crossbow, and can of lighter fluid held by Deorle at various times. At no point did Lowery verbally threaten anyone, unlike Deorle's repeated threats to "kick [Rutherford's] ass." Most importantly, at no point during the period in time between defendants' arrival and the first four to five shots did Lowery make any sort of advance towards the officers, much less an advance towards an officer with a can of lighter fluid in his hand, as in Deorle.

3 Although Katsarsis testified hypothetically that a razor blade could fit in Lowery's closed hand (Katsaris Testimony, p. 953, lines 13-19), no defendant testified that he considered that possibility.

Some defendants indicated that they were concerned when Lowery first began moving on his stomach because he pulled his hands towards his waistband where individuals often keep weapons. See, e.g., Gradwahl Testimony, pp. 60-61. Furthermore, defendant Ladd repeatedly testified that Lowery was on his stomach or knees "getting up" in a "hostile fight stance" while "fixated on our position" when he fired the first four to five shots. Ladd Testimony, pp. 26-27, 65-67.

As the Ninth Circuit made clear in Deorle, conclusory statements of an officer's concern for his safety do not establish a strong governmental interest justifying the use of force. Instead, objective factors must support the professed concern. Certainly if an individual whom officers believe to be armed with a weapon draws his hands into his waistband and disregards an order to put his hands up, then a strong governmental interest justifies the use of force due to the objective danger to the officers. But officers do not have a strong interest in using substantial force every time an individual draws his hands towards the waistband area; other objective facts must substantiate a concern.

Even though Lowery drew his hands towards his waistband while lying on the ground, the governmental interest in using force against him remained especially low. First, defendant Ladd's statement that Lowery was in a "hostile fight stance" is wholly conclusory, especially when compared with his other testimony that Lowery remained on the ground or on his knees with his hands out to his sides during the first four to five shots. Second, even if Lowery was "getting up" while "fixated on [defendants'] position," defendant Ladd admitted he had no reason to believe that Lowery had a weapon when he fired, and he also knew that Lowery was probably incapable of following commands to show his hands. The other defendants also did not see Lowery with any weapons in his hands (other than perhaps a piece of glass with which defendant Holthausen saw Lowery use to cut himself). Third, Lowery made no threats towards defendants and did not advance on them in any way. Instead, he was asking them to shoot him. Fourth, Lowery was clearly injured and may have drawn his hands towards his waist because he was in pain.

By no means is a police officer required to wait to be attacked before using force. But the point where a use of force is necessary to prevent an imminent attack was not reached here. Although Lowery was growling or screaming, fixated on the police, and trying to rise from the ground, he had made no threats to defendants, was severely injured and mentally or emotionally disturbed, was not considered armed, was still on the ground, and had not demonstrated an ability to rise. Simply put, the second Graham factor of a risk to the officers or public does not weigh in defendants' favor simply because Lowery drew his hands towards his waistband area and defendant Ladd had a subjective belief about Lowery's hostility.

The third Graham factor, the risk of flight, was also low at this point in the encounter. Although they had set up no roadblocks, seven police officers were in the immediate presence of Lowery after he had just landed on concrete after falling out of a second story window, was bleeding, possibly slipping in and out of consciousness, and on the ground. As in Deorle, nothing suggests that the officers considered other tactics before using the "less lethal" shotgun. Directly after Lowery began making noises and moving his hands beneath him towards his waistband, defendants Holthausen and Gradwahl retreated and defendant Ladd began shooting. He used a weapon designed for long-range defensive use to repel an attack. Defendants did not consider calling in negotiators specially trained to deal with mentally disturbed individuals, nor did they consider retreating further, waiting longer to observe the situation, or even physically restraining Lowery without the use of weapons.

Because Lowery was injured and bleeding, defendants contend that they had a strong governmental interest in obtaining medical attention for him. The Fourteenth Amendment due process clause "require[s] the responsible government or governmental agency to provide medical care . . . to persons who have been apprehended by police." City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).⁴ However, "[it] is essential to realize that the state's duty to provide medical services stems from the limitation which the state has placed on the individual's ability to act on his own behalf, and not from the state's knowledge of the individual's predicament or from its expressions of intent to help him." Griffith v. Johnston, 899 F.2d 1427, 1439 (5^th Cir 1990), cert denied, 498 U.S. 1040 (1991) (citation omitted). Here Lowery was not apprehended, being apprehended or otherwise being taken into custody. Therefore, it is not clear that defendants had any duty to provide him medical assistance. See Harris v. District of Columbia, 932 F.2d 10 (DC Cir 1991) (officers had no clearly established constitutional obligation to obtain medical care for victim of drug overdose). But even if they did, the need to obtain medical care for Lowery supports only some governmental interest, not a strong governmental interest in using force capable of inflicting death or serious injury on an already seriously injured person.

4 Plaintiffs alleged that defendants violated that duty by not quickly restraining Lowery, but instead by standing back and using every weapon at their disposal, which unnecessarily delayed the arrival of medical help. Because all of plaintiffs' claims hinged on their allegation of excessive force, the parties agreed at the Pretrial Conference that the Fourteenth Amendment claim for delay of medical care did not need to be separately submitted to the jury.

Applying the Graham factors to the use of the first three cans of pepper spray leads to the same result. The character of the offense remained the same; the risk of flight and danger to the police and public remained low; and the simple fact that Lowery sometimes had his hands near his waistband (especially after being hit in the groin by one "less lethal" shot) did not provide a sufficiently strong governmental interest in using force capable of inflicting serious injury. Although the "less lethal" shots were ineffective in obtaining Lowery's compliance with police commands, that fact alone does not warrant the use of pepper spray in the copious amounts used here. This court also rejects the concept that a need to obtain medical attention for a person not being taken into custody gives rise to a strong governmental interest.

In short, an evaluation of the Graham factors, especially in comparison to Deorle, permits only one conclusion, namely that the government did not have a strong interest in the use of force for the first four to five "less lethal" shots and first three cans of pepper spray used prior to Lowery's act of charging defendant Dalberg. c. Weighing Conflicting Interests

The jury was instructed to weigh the force applied against the need for force by evaluating the three Graham factors and considering Lowery's mental and emotional condition as required by Drummond. The jury concluded that defendants used no excessive force. However, after reviewing all the evidence in the light most favorable to defendants and weighing these same factors, this court concludes that no reasonable jury could find that the low governmental interests at stake warranted the initial use of force prior to Lowery's act of charging defendant Dalberg.

During this initial part of the encounter, the officers had no interest in arresting Lowery and he posed no immediate threat to the safety of the officers or others. Thus, those factors militate against the use of force. Lowery's mental and emotional condition also weighed against the need to use force. When police are confronted by an unarmed, emotionally distraught individual who has committed no serious crime, as opposed to an armed and dangerous criminal, the governmental interest in using force is diminished, not strengthened, even when the suspect is irrational and inviting the use of force:

The problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense. In the former instance, increasing the use of force may, in some circumstances at least, exacerbate the situation; in the latter, a heightened use of less-than-lethal force will usually be helpful in bringing a dangerous situation to a swift end. In the case of mentally unbalanced persons, the use of officers and others trained in the art of counseling is ordinarily advisable, where feasible, and may provide the best means of ending a crisis. Even when an emotionally disturbed individual is "acting out" and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual. We do not adopt a per se rule establishing two different classifications of suspects: mentally disabled persons and serious criminals. Instead, we emphasize that where it is or should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor that must be considered in determining, under Graham, the reasonableness of the force employed.

Doerle, 272 F.3d at 1282-83 (citation omitted).

This leaves only the Graham factor of active resistance, attempts to evade arrest, or other exigent circumstances. Lowery did fail to follow commands. However, the failure to follow commands does not constitute "active resistance." See Headwaters Forest Defense, 276 F.3d at 1130 (rejecting defense characterization of behavior as "active resistance" when the trial testimony established merely a refusal to follow police commands). Furthermore, defendant Ladd was aware Lowery had taken hallucinogenic mushrooms and knew Lowery might not be able to understand his commands and warnings while in this mental state. Yet he shot Lowery anyway.

This court recognizes that defendants were required to make split-second judgments under tense circumstances, but as in Deorle, "the situation here was far from that of a lone police officer — suddenly confronted by a dangerous armed felon threatening immediate violence[.]" 272 F.3d at 1283. Defendants were informed by Boyle that Lowery had taken hallucinogenic mushrooms and fought with him, but had not caused Boyle any serious injury. Seven wellarmed officers were immediately present. Lowery had just fallen through a second story window onto concrete. He was unarmed, bleeding, and possibly passing in and out of consciousness. He had not verbally threatened the officers or advanced on them in any way. At worst, his fists were clenched and he raised to his knee and was "fixated" on the officers.

This is a legally insufficient evidentiary basis for any reasonable jury to find that the first four to five "less lethal" shots used on Lowery prior to his contact with defendant Dalberg were not excessive force. Defendant Ladd fired these initial shots despite the fact that Lowery had committed no serious crime, offered no resistance, and posed no tangible threat to anyone, save perhaps to himself. Moreover, defendant Ladd admitted that he had no reason to believe Lowery was armed. In these circumstances, there can be but one reasonable conclusion, namely that the quantum of force used at this initial point in the encounter was excessive.

Similarly, there is a complete absence of evidence to support the conclusion that using the first three cans of pepper spray was constitutionally permissible. Two full canisters of spray were used when Lowery was on his knees with his hands at his sides. Lowery had no weapon, and did not charge, attack or threaten any of the officers. A third canister was used after Lowery fell back to the ground. Lowery also had just been hit four or five times with the "less lethal" shots. The few portions of defendants' testimony that indirectly imply Lowery appeared threatening at the time are sufficient only to give rise to an extremely low governmental interest and did not justify the use of force capable of causing death or serious injury. Moreover, nothing explains or justifies defendants' actions of emptying entire canisters of pepper spray on Lowery. As defendants' expert conceded, the amount of pepper spray used was "excessive in terms of the amount that I would ever think I'd ever see" (even though he found it reasonable under the circumstances). Katsaris Testimony, p. 42, lines 24-25 p. 43, line 23-p. 44, line 10.

This court has cited only Ninth Circuit cases in which the application of the Graham factors has arisen in the context of a summary judgment motion. Instead of entering judgment in favor of the plaintiff, the court denied officers' qualified immunity defense and either remanded for trial ( Drummond, 343 F.3d at 1062) or for "further proceedings consistent" with its opinion ( Headwaters Forest Defense, 276 F.3d at 1131; Deorle, 272 F.3d at 1286). In those cases, the Ninth Circuit was obligated to view the facts in favor of the plaintiff, whereas this court must view the evidence in the light most favorable to defendants. This distinction has no significance here because there are no facts in dispute regarding the initial use of force.

On at least one occasion, the Ninth Circuit has vacated a jury verdict in an excessive force case. In Saman v. Robbins, 173 F.3d 1150 (9^th Cir 1999), the jury returned a verdict in plaintiff's favor on his excessive force and battery claims against Officer Kimball. The trial court denied Kimball's motion for judgment as a matter of law. Despite two possible versions of events developed at trial, the Ninth Circuit reversed and granted Kimball's motion because it found no evidence on which a reasonable jury could find that excessive force was used. Id at 1156-57.

This case also lacks evidence to support the jury's verdict with respect to the first four or five "less lethal" shots and the first three cans of pepper spray. Accordingly, plaintiffs' motion for judgment as a matter of law is granted with respect to this initial use of force.

Alternatively, for the reasons explained below, plaintiffs are entitled to a new trial with respect to this use of force.

2. Subsequent Use of Force

After the first four or five "less lethal" shots and three cans of pepper spray, Lowery got up and charged defendant Dalberg, who spun out of the way. Lowery went down to the ground again while several defendants beat him with their ASP batons. When those defendants backed away, defendant Ladd shot Lowery three more times, reloaded and shot another three times. Lowery was on his knees when the shots began, but was lying on his side by the last shot. Lowery then rolled over and defendants could see that he had no weapon in his hands. Defendants then emptied three more canisters of pepper spray at Lowery and proceeded to strike him again with ASP batons.

Somehow Lowery got up and went over the fence into the neighbor's yard, landing face down. Several officers then beat him with their ASP batons to keep him from getting up. To keep him on the ground, defendant Nicholson put his right foot on the shoulder/neck area of Lowery's upper back, pushing down on him with his full body weight, and briefly placed his left foot on the back of Lowery's head, while holding onto the fence for balance. Lowery repeatedly called out the words "momma, momma, momma." Despite resistance, defendants managed to place Lowery in the maximum restraint position, which involves handcuffing a person's hands behind the back, binding the ankles together, and connecting the bound ankles to the handcuffs with a nylon strap. The paramedics arrived and loaded Lowery onto a stretcher and took him to the ambulance in the maximum restraint position. Lowery died either before or shortly after being placed on the stretcher.

a. Nature and Quality of the Intrusion

There can be no question that the amount of force used on Lowery after he made contact with defendant Dalberg was substantial. An ASP baton is an expandable metal baton that can cause serious bodily injury or even death and is supposed to be used to defend against physically aggressive and threatening behavior. Gradwahl Testimony, pp. 33-34. The decision to repeatedly shoot an individual with a "less lethal" shotgun, spray several cans of pepper spray directly into his face, and strike him numerous times with an ASP baton, can only be made when a strong governmental interest compels the employment of such force.

As recently held by the Ninth Circuit, the use of the maximum restraint while two officers pressed their weight on an individual's neck and torso as he begged for air is a severe use of force that is only permissible when compelled by a strong governmental interest. Drummond, 343 F.3d at 1056-57. Here Lowery was handcuffed and placed in the maximum restraint while defendant Nicholson stood on him. He called for his "momma" throughout this period. These facts are similar enough to Drummond to establish that the use of force was severe, and that defendants needed a strong governmental interest to compel use of such force on Lowery.⁵ b. Government Interests at Stake

5 Dicta in Drummond discussed the possibility that the use of maximum restraint under the circumstances of that case could constitute "deadly force" under Tennessee v. Garner, 471 U.S. 1, 3 (1985). 343 F.3d at 1057 n 4. Under Garner, deadly force may be used only if "it is necessary to prevent the escape [of a suspected felon] and the officer has probable cause to believe the suspect poses a significant threat of death or serious physical injury to the officer or others." Id (internal citations omitted). The court did not have to decide that issue because it ruled the force used on the plaintiff was not justified under the standards applied when severe force is used. Id.
Because the plaintiffs did not raise the issue of whether it was deadly force to use the maximum restraint on Lowery under the circumstances of this case and did not request a jury instruction on deadly force, this court will not decide the issue. However, even if the use of maximum restraint in this case was deadly force, the facts are in sufficient doubt to preclude granting a motion for a judgment as a matter of law. Under the totality of factors test set forth in Garner, a reasonable jury could find that such deadly force was necessary to prevent the escape of Lowery after he had already shown the ability to escape by climbing over the fence. A reasonable jury could also find that Lowery posed a significant threat of death or serious injury to the officers or others by assaulting defendant Dalberg and demonstrating an ability to continue resisting the officers, even when surrounded in the neighbor's back yard and eventually placed in maximum restraint.

Charging defendant Dalberg, going over the fence, and physically resisting defendants while in the neighbor's back yard profoundly increased the level of governmental interest at stake. Lowery's contact with defendant Dalberg made Lowery a considerably higher threat to the immediate safety of the officers and others. This contact gave him potential access to defendant Dalberg's gun and demonstrated that he was capable of advancing on an officer. Lowery's conduct supports a reasonable inference that Lowery posed a potential threat to defendants or others. Lowery may have intended simply to avoid further injury by the officers and could have grabbed defendant Dalberg accidently, but a reasonable officer could reach a different conclusion as to Lowery's intent.

Drawing all inferences in favor of defendants, this threat did not subside even when Lowery was placed in maximum restraint while defendant Nicholson stood on him. The restraint was necessary to allow the paramedics to provide medical attention to Lowery, and several defendants testified that it appeared Lowery might even be able to break out of the restraint.

Therefore, the evidence is sufficient to support the conclusion that the government had a strong interest in using force on Lowery after he charged defendant Dalberg and went over the fence.

c. Weighing Conflicting Interests

The third step is to weigh the severe use of force against the government's strong interest in protecting the officers and others from the potential threat posed by Lowery.

i. ASP Batons, "Less Lethal" Shots Pepper Spray

Because it supports a reasonable inference that Lowery posed a potential threat, Lowery's contact with defendant Dalberg justified the use of some force, and the evidence would certainly support the use of ASP batons to keep Lowery down on the ground. ASP batons can be used to defend against physically aggressive and threatening behavior which Lowery had exhibited.

However, the additional use of pepper spray and "less lethal" shots are highly questionable. The earlier use of pepper spray and "less lethal" shots had not kept Lowery on the ground or made him comply with commands. Defendants' psychiatric expert testified that, as a result of his drug-induced psychosis or delirium, Lowery may have been beyond pain and reason. Resnick Testimony, p. 7, lines 11-16 p. 22, lines 6-11. As a result, both pepper spray and "less lethal" shots were rendered less effective than on a normal person. Because Lowery badly needed medical attention, defendants contend that they had no option other than using more pepper spray and "less lethal" shots — in other words, everything available short of deadly force — to restrain Lowery and prevent him from getting up again.

This court is alarmed by defendants' willingness to increase the use of force against an injured and unarmed person, particularly in view of how ineffective the same force had already proven. In their desire to restrain Lowery to get him medical attention for his injury and prevent him from further injuring himself or others, they continued to physically assault him and further injure him. As defendant Gradwahl admitted, he and the other defendants were "pumped up and excited that this point" and their adrenaline was "going pretty high." Gradwahl Testimony, p. 36, lines 17-20.

Nevertheless, the evidence was sufficient for a jury to conclude that the amount of force used at this point was objectively reasonable not only because Lowery needed medical attention, but also because he posed a danger to the officers and others. Although the need to provide medical attention to Lowery does not constitute a strong governmental interest, as discussed above, it still is some governmental interest. When that governmental interest is combined with the additional governmental interest to prevent Lowery from causing injury to officers and others, a reasonable juror could conclude that the combined governmental interest was sufficiently strong to justify the amount of force used. Where more than one legitimate inference may be drawn from the evidence, the jury must decide what inference to draw. Reeves, 530 US at 150-51. The decision of whether the force used at this point in the encounter crossed the constitutional line must be left to the collective judgment of a jury.

ii. Maximum Restraint

It also is a close issue as to whether the governmental interest, when weighed against the substantial amount of force involved in the use of the maximum restraint and defendant Nicholson's standing position, " compel[led]" the employment of such force. Deorle, 272 F.3d at 1280 (emphasis in original). Nonetheless, defendants submitted evidence, which if believed, was sufficient to support the jury's verdict.

The testimony supports a reasonable inference that until the paramedics arrived, Lowery physically resisted being handcuffed by pulling in his hands, kicking, or bucking. Lowery still possessed surprising strength and, by all accounts, was difficult to restrain, requiring defendant Nicholson to stand on his shoulder and head to hold him down. Within one minute after Sergeant Adams arrived at 6:13 am, Lowery was handcuffed. She then called dispatch to clear the paramedics while defendants continued to put Lowery in the maximum restraint position. While applying the maximum restraint, defendants testified that they still encountered resistance and were concerned that Lowery might break out.

The evidence conflicts regarding precisely when Lowery stopped resisting, when defendant Nicholson stopped standing on him, whether defendants were adequately trained in the risks of asphyxiation inherent in standing on an individual in maximum restraint, and whether Lowery died of ashpyxiation or blood loss. Resolving these and all other conflicts in favor of defendants, the court concludes that reasonable jurors could find that the force employed after Lowery charged defendant Dalberg was not constitutionally excessive.

d. Conclusion

Plaintiffs are not entitled to judgment as a matter of law with respect to the use of force after Lowery charged defendant Dalberg. However, as discussed below, a jury could also find that the initial use of force provoked a flight response by Lowery, causing his contact with defendant Dalberg and the ensuing escalation in force. Under those circumstances, the subsequent use of force could be excessive. For the reasons set forth below, a new trial is necessary to determine whether the subsequent use of force was excessive.

C. Alternative Motion for New Trial

Even if plaintiffs are not entitled to a judgment as a matter of law on the initial use of force, they are entitled to a new trial as to all force used, as explained next.

1. Use of "Less Lethal" Shots and Pepper Spray Prior to Charging Defednant Dalberg

Because this court grants plaintiff's motion for judgment as a matter of law as to the initial use of force, FRCP 50(c)(1) requires a ruling on the alternative motion for a new trial. Even if plaintiffs are not entitled to judgment as a matter of law with respect to the firing of the first four to five "less lethal" shots and the use of the first three cans of pepper spray, the verdict is against the clear weight of the evidence. For the reasons discussed above, this court is left with the definite and firm conviction that the jury committed a mistake. Accordingly, plaintiffs are entitled to a new trial on the initial use of force before Lowery charged defendant Dalberg.

Substantially contributing to, if not causing, that mistake by the jury was the court's failure to give proper jury instructions. The court did instruct the jury to consider the liability of each defendant, rather than the group of defendants, but did not specifically instruct the jury to separately scrutinize the reasonableness of each act or episode of force. For example, the jury was not instructed that it could find the use of the "less lethal" shotgun and pepper spray before Lowery made contact with defendant Dalberg was constitutionally excessive and also find that application of the maximum restraint was not excessive force. As a result, the jury likely conflated all of the force used by defendants into one incident, rather than examining each separate use of force. Defendants point out that during closing arguments, plaintiffs' attorney identified each use of force by defendants and separately claimed that each one was an excessive use of force. However, the law is clear that an attorney's "closing remarks are no substitute for the proper instructions." Chiarella v. United States, 445 U.S. 222, 239 (1980) (Brennan, J., concurring); Murtishaw v. Woodford, 255 F.3d 926, 969 (9^th Cir 2001), cert denied, 535 U.S. 935 (2002) (noting that an attorney's closing argument cannot cure a defective jury instruction). Thus, the argument by plaintiffs' attorney cannot make up for the lack of a jury instruction that was never given. Furthermore, the closing arguments by both attorneys primarily focused on whether the maximum restraint and defendant Nicholson standing on Lowery's back caused Lowery's death.

The jury instructions also suffered from a second serious deficiency. The modified version of the Ninth Circuit's Model Jury Instruction 11.4 given by the court did not direct the jury to follow the three-step Graham analysis. Instead, the jury was instructed to simply decide whether the force used was "reasonably necessary or excessive" considering a number of factors identified in Graham and Deorle. Jury Instructions, p. 6 (docket #189). The jury was not told that the severity of the force required a strong governmental interest to justify its use. Instead, it was told to "weigh the need for the application of force against the amount of force used." Id.

The jury may have had the tools to evaluate whether the governmental interest in using force was strong. But based on the instruction given, the jury easily could have concluded that defendants did not need a strong governmental interest. As discussed above, such a conclusion runs afoul of the Ninth Circuit's guidance. Alternatively, the jury could have concluded that the need to obtain medical attention for Lowery was a strong governmental interest which, as discussed above, it is not. Had the jury been instructed that the governmental need must be strong for the "less lethal" shots and pepper spray used on Lowery, it could have reached a different verdict with respect to that force used before Lowery charged defendant Dalberg.

It was plaintiffs' responsibility in the first instance to articulate and prove their theories of liability and to proffer appropriate instructions before the jury retired to deliberate. Because they did not request this instruction, FRCP 51 bars plaintiffs from assigning error to the omission of this jury instruction. Nevertheless, trial courts have broad discretionary power to correct a miscarriage of justice, including one arising from erroneous jury instructions, and may do so by ordering a new trial. Murphy v. City of Long Beach, 914 F.2d 183, 186-88 (9^th Cir 1990).

In Murphy, the trial court granted a new trial following a defense verdict in a wrongful death case involving a citizen killed in a police encounter. Although plaintiff had not objected to the jury instructions, the court sua sponte concluded that it had erred by failing to give an instruction on comparative negligence and also by giving an improper instruction relating to emotional distress damages. The Ninth Circuit emphasized that "to ensure that a party is not a victim of a miscarriage of justice," the trial court has the " sua sponte power to grant a new trial on grounds not alleged by a party." Id at 187. It also questioned the applicability of FRCP 51:

[I]t is not at all clear that Rule 51 prevents a court from granting a new trial for, among other reasons, erroneous jury instructions in order to prevent a miscarriage of justice. We note that the prime purposes of Rule 51, to bring the mistake to the court's attention and to further appellate review, are not applicable when the court, sua sponte, exercises its broad discretion to grant a new trial on these grounds.

Id at 187 n 7.

Given the trial court's "conviction that the impact of [the jury instructions] resulted in a miscarriage of justice," the Ninth Circuit concluded that the court did not abuse its discretion and affirmed the order for a new trial. Id at 187.

Here, this court is convinced that the impact of its erroneous jury instructions was prejudicial and resulted in a miscarriage of justice. These issues were central to the trial, and without the jury receiving clear instructions to separately evaluate each use of force and to weigh the force used against a strong governmental interest, the trial was unjust. A new trial is necessary in which the jury is properly instructed that: (1) the use of force can be excessive at one point in an encounter and not at another; and (2) the amount of force used on Lowery prior to his contact with defendant Dalberg required a strong governmental interest to justify its use.

2. Subsequent Use of Force

Based on the jury instructions that were given, this court cannot conclude that the verdict was against the clear weight of the evidence with respect to the use of force after Lowery charged defendant Dalberg. Therefore, a new trial is not appropriate on that basis.

However, the jury's analysis of the force used throughout the encounter with the officers was affected by the failure to give jury instructions that the use of force can be excessive at one point in an encounter, but not another, and that the severity of the force required a strong governmental interest to justify it use. Therefore, these failures warrant a new trial not only on the force used before Lowery charged defendant Dalberg, but also on all subsequent force used against Lowery.

A new trial on the use of force after Lowery's contact with defendant Dalberg also is required by the court's failure to instruct the jury on the "danger creation theory" set forth in Alexander v. City and County of San Francisco, 29 F.3d 1355, 1366-67 (9^th Cir 1994), cert denied, 513 U.S. 1083 (1995), and Billington v. Smith, 292 F.3d 1177, 1189-1191 (9^th Cir 2002).

In Alexander, the police forcibly entered the home of a mentally ill, partially blind man who had threatened to shoot anyone who entered. After the police entered the house and the man fired shots at them, the police shot and killed him. Although the police acted reasonably at the moment of the fatal shooting, the Ninth Circuit denied summary judgment. It accepted the plaintiff's theory that if the police acted unreasonably in entering the house, they could be liable for creating the situation that resulted in the subsequent use of deadly force.

Subsequently in Billington, the Ninth Circuit clarified that its ruling in Alexander did not extend to situations where mere "bad tactics" or "negligent acts" on the part of the police result in a dangerous confrontation. However, if an officer "intentionally or recklessly provokes a violent response, and the provocation is an independent constitutional violation, that provocation may render the officer's otherwise reasonable defensive use of force unreasonable." Billington, 292 F.3d at 1191 (emphasis in original).

In this case, the first four or five "less lethal" shots and the first three cans of pepper spray were used before Lowery had demonstrated any ability to stand up and while he was severely injured, emotionally disturbed, under the influence of a hallucinogen, and passing in and out of consciousness. Lowery had not made any threatening remarks or movement towards defendants and there was no objective reason to believe that he had a weapon in his hands. This initial use of force may have provoked Lowery to get up and run into defendant Dalberg. If that initial use of force was excessive and used recklessly or intentionally, then defendants' subsequent use of reasonable force to protect defendant Dalberg and themselves is rendered unreasonable.

Even though not expressly requested by plaintiffs, the court should have given the jury an Alexander-Billington instruction that if this initial use of force intentionally or recklessly provoked a violent response by Lowery, then that provocation may render the subsequent force unreasonable — even if otherwise reasonable. This omission was not harmless error. Although a jury could conclude that the initial use of force resulted from merely "bad tactics" or "negligent acts," there is sufficient evidence by which a jury could also find that defendants recklessly provoked Lowery to flee or to charge his assailants. Without this instruction, the jury may have considered only whether Lowery's death was justified after the situation spun out of control, instead of considering whether defendants should be liable for escalating the situation to the point of a violent outcome.

As with the other jury instructions this court erroneously failed to give, FRCP 51 bars plaintiffs from assigning error to the omission of an Alexander-Billington jury instruction. However, this court concludes sua sponte that it was a miscarriage of justice not to give this instruction on the "danger creation theory" before the jury retired to deliberate. Murphy, 914 F.2d at 186-88. This issue was central to the trial. It would be a cruel irony indeed if the force used on Lowery was justified only by the threat he posed to himself from his injuries and ingestion of drugs. At a minimum, a jury should be required to decide whether at the outset, defendants properly handled Lowery as an emotionally disturbed person who only needed medical attention, or whether their initial use of force recklessly provoked a violent response.

Accordingly, plaintiffs are granted a new trial on the alleged uses of excessive force after Lowery's contact with defendant Dalberg.

D. Defendant Livingston

Because defendant Livingston was not present to observe the force used initially on Lowery, including the first four to five "less lethal" shots and three cans of pepper spray, he is not liable with respect to that use of force. However, he may still be liable for the subsequent use of force based on the deficiencies in the jury instructions since he was present to observe some of that force used in the neighbor's back yard, yet failed to intervene.

III. Alternative Motion for a New Trial Based on the Inconsistent Verdict Forms.

Plaintiffs also make an alternative motion for a new trial based on the inconsistencies between the two verdict forms delivered in this case. Although this court has partially granted plaintiffs' motion for judgment as a matter of law on the excessive force claims, FRCP 50(c)(1) requires this court also to rule on the alternative motion for a new trial on the basis of this inconsistent verdict argument. For the reasons that follow, this motion is denied.

A. Inconsistent Verdict Forms

The jury completed two verdict forms in this case. The first verdict marked "Yes" in answer to Question No. 1 which asked: "Was excessive force used on Damon Lowery?" The verdict form then instructed that: "If your answer is `Yes,' proceed to Question No. 2. If your answer is `No,' do not answer any further questions and have your presiding juror sign and date this Verdict." The remaining three questions asked: "Which of the defendants are liable for excessive force?" ("Question No. 2"), followed by the names of each defendant; "Did the use of excessive force cause Damon Lowery's death?" ("Question No. 3"); and "Is the City of Portland liable based on its failure to train?" ("Question No. 4"). The jury did not answer Questions Nos. 2, 3, or 4.

The following colloquy occurred when this court observed the first verdict:

THE COURT: Looking at this verdict, it appears to me to be incomplete. You've answered the first question as follows: Was excessive force used on Damon Lowery? Answer: Yes.

But there are no answers to any of the other questions.

JUROR NO. 1: It was filled out incorrectly.

THE COURT: Incorrectly?

JUROR NO. 1: Yes.

Verdict, Transcript of Proceedings, p. 3.

The court then gave the jury a new verdict form. The jury returned with the second verdict which changed the answer to Question No. 1 to "No." Correctly following the instructions, the rest of the verdict form was left blank. Plaintiffs objected to the inconsistency of the opposing verdict forms before the jury was discharged. The court accepted the second verdict and discharged the jury.

B. Whether the Inconsistent Verdict Forms Require a New Trial

If the jury mistakenly answered "Yes" to Question No. 1, plaintiffs agree it was entirely appropriate to give them a new form and send them back without further guidance. If, however, the jury accurately answered "Yes" to Question No. 1, but mistakenly failed to answer the ensuing questions, plaintiffs submit that it was error to give them a new verdict form without further guidance. The jury may have believed that it only had two choices after the First Verdict was not accepted: (1) to either change its answer to the first question to "No;" or (2) to fill out the remainder of the form. Plaintiffs argue that this perceived "Hobson's choice" was incorrect because the jury was entitled to reach a verdict on Question No. 1, but not on the remaining questions.

A judge cannot coerce the jurors into surrendering views conscientiously held. Jenkins v. United States, 380 U.S. 445, 446 (1965) (ordering a new trial when the judge wrongly told the jurors, "You have got to reach a decision in this case," after the jury insisted it was unable to reach a verdict because of insufficient evidence). Although a court cannot "push the jury in one direction or another," the practice of resubmitting an inconsistent verdict to the jury for clarification is "well-accepted." Duk v. MGM Grand Hotel, Inc., 320 F.3d 1052, 1056 (9^th Cir 2003) (internal citations omitted) (approving acceptance of a second verdict, after resubmission, that had different answers to the exact same questions when compared with the first verdict). Resubmission is appropriate because "when the very body that issued the ambiguous or inconsistent verdict is still available to clarify its meaning, a request that it do so comports with common sense as well as efficiency and fairness." Id, quoting Larson v. Neimi, 9 F.3d 1397, 1401 (9^th Cir 1993). Indeed, "where the jury is still available, a district court's decision to resubmit an inconsistent verdict for clarification is within its discretion." Id at 1057. Resubmission "leaves open the possibility that the jury will reach an improper `compromise' verdict," but the court will "presume that citizen jurors will properly perform the duties entrusted them and will not construe resubmission as an invitation to subvert the law and contort findings of fact in favor of a desired result." Id at 1058. Additionally, the process of resubmission "is not simply restricted to correcting transcription errors, but also envisions a process of redeliberation." Id at 1059.

Because the first verdict was ambiguous, it was within this court's discretion to resubmit the case to the jury in order to clarify this ambiguity. The resubmission was not coerced by advising the jury that the first verdict appeared incomplete and asking whether it was filled out incorrectly.

Furthermore, the difference between the first and second verdicts can be explained even if the plaintiffs' theories of the jurors' intent are correct. Even if the jury originally concluded that Lowery was subjected to excessive force (thus it answered "Yes" to Question No. 1), but could not decide which, if any, of the individual defendants should be liable (thus leaving blank the answer to Question No. 2), upon resubmission it was entitled to redeliberate these issues and come to a different conclusion in answer to Question No. 1. The jury could have insisted after resubmission (or at the time of the colloquy regarding the first verdict) that it found the use of excessive force, but was unable to reach a verdict on the liability of the individual defendants. In that event, this court would have decided whether to order a new trial. However, the jury did not ultimately come to that conclusion and, in fact, only deliberated for another few minutes. Whether it was because the answer to Question No. 1 in the first verdict was a simple scrivener's error (as was likely), or because the jury redeliberated after resubmission, the second verdict was acceptable because its inconsistency with the first verdict can be explained in a way that comports with the law.

ORDER

For the reasons discussed above, plaintiffs Motion for Judgment as a Matter of Law, or in the Alternative, Motion for New Trial (docket #196) is GRANTED AND DENIED IN PART as follows:

Plaintiffs are granted judgment as a matter of law against all individual defendants (except defendant Livingston) on the claim of constitutionally excessive force regarding the first four to five "less lethal" shots and the first three cans of pepper spray used prior to Lowery charging defendant Dalberg. As a result, plaintiffs are entitled to recover damages, if any, for Lowery's pain and suffering resulting from this use of force (or, at a minimum, nominal damages of $1.00) and reasonable attorney fees and to a new trial on plaintiffs' claim against defendant City of Portland for a failure to adequately train. In the alternative, plaintiffs are entitled to a new trial on this initial use of force.

In addition, plaintiffs are denied judgment as a matter of law, but granted a new trial, with respect to all other force employed on Lowery after he charged defendant Dalberg, including the remaining "less lethal" shots, subsequent use of pepper spray, use of ASP batons, and use of the maximum restraint while defendant Nicholson stood on Lowery. As a result, plaintiffs also are granted a new trial on their claim against defendant City of Portland for failure to adequately train.

As a result, defendants' Cost Bill (docket #194) is DENIED as moot.

APPENDIX

The facts viewed in the light most favorable to defendants leading up to Lowery's death are summarized as follows:

I. Use of "Less Lethal" Shots and Pepper Spray Prior to Charging Defendant Dalberg

On December 5, 1999, shortly before 6:00 a.m., defendants Livingston and Holthausen were dispatched to a house in Southwest Portland Livingston Testimony, pp. 3-4.^1a When they arrived, they were met outside by Dave Boyle ("Boyle") and Kim Seto ("Seto"). Id, p. 5, lines 4-6. Boyle told them that his friend, Lowery, had taken hallucinogenic mushrooms. Id, p. 22, lines 9-12. Boyle also told them that he and Lowery got into a fight. Id, p. 8, lines 13-16. Boyle was not seriously injured and reported Lowery did not use any weapons in the fight. Id, p. 7, lines 6-8. Based on the information gathered, defendants did not consider it a felony situation and were not planning on arresting Lowery. Id, p. 8, line 19-p. 9, line 5.

1a Citations are to the last name of the witness and the page and line number of his or her trial testimony submitted as exhibits by the parties or transcribed by the court.

Lowery remained alone in the house. See id, p. 8, lines 13-18. Defendants Livingston and Holthausen could hear Lowery inside the house saying things like, "I am not worthless" and "I am worthy," and throwing things. Id, p. 7, lines 17-24; p. 68, lines 2-4. They could hear him yelling at people who were not there. Id, p. 67, lines 20-23. They could also hear him making "strange, unintelligible grunting noises." Id, p. 68, lines 5-6. In an interview with detectives two days after the incident, defendant Holthausen described Lowery as "very distraught" and "emotional." Holthausen Testimony, p. 43, lines 2-5.

Defendants did not request the presence of an officer trained in handling situations involving emotionally disturbed people. Livingston Testimony, pp. 11-12. Instead, they radioed for an officer authorized to carry a "less lethal" shotgun. Id, p. 22, lines 13-19; Ladd Testimony, p. 4, lines 12-13. Defendant Ladd responded to the call armed with a model 3000 Smith Wesson 12-gauge shotgun loaded with shotgun shells containing lead-filled sacks (commonly referred to as beanbags). Ladd Testimony, p. 4, lines 14-16 pp. 19-21.

Defendants Livingston and Holthausen updated defendant Ladd on what Boyle had told them. Livingston Testimony, p. 15, lines 13-15. The three of them made no effort to communicate with Lowery or calm him down. Id, p. 16, lines 19-25. Instead, they pushed open the front door and shouted commands. Id, p. 17, lines 1-11. Seconds later, they heard a loud crash coming from the back of the house that sounded like a window breaking. Id, p. 17, lines 12-14.

As a group, the three defendants went around toward the back yard of the house on the north side. Id, p. 19, lines 1-7 p. 24. When they arrived, they shined their flashlights over a wooden fence and into Seto's back yard. Id, p. 19, lines 8-13. Lowery was lying on a concrete patio, 12 feet below a broken plate-glass window, and moaning. Id, p. 24, lines 13-19; Ladd Testimony, pp. 12 14. At this time, defendant Holthausen saw Lowery rake a piece of glass across his neck in an apparent attempt to take his own life. Holthausen Testimony, pp. 27-28. Defendant Holthausen then yelled back to the other officers, "He's got a piece of glass in his hand" Id at 28, lines 6-7. Defendant Ladd did not see Lowery with a piece of glass in his hand, nor does he recall defendant Holthausen mentioning it. Ladd Testimony, p. 14, lines 4-21.

Defendant Livingston left and headed around to the south side of the back yard. Livingston Testimony, p. 25. By this time, all seven defendants were at the scene and had entered the back yard.

When defendants entered the back yard, Lowery was still lying face down on the concrete patio with blood around him. Ladd Testimony, p. 16, lines 2-3; Dalberg Testimony, p. 5, lines 4-8; Gradwahl Testimony, p. 12, lines 3-5; Livingston Testimony, p. 26, lines 2-3. His upper body was motionless, but at one point his feet were moving around — suggesting a potential seizure. Ladd Testimony, p. 16, lines 4-8. Thereafter, Lowery stopped moving and may have lost consciousness. Gradwahl Testimony, p. 13; Dalberg Testimony, p. 5, lines 13-14. Several of the defendants put on protective gloves. Gradwahl Testimony, p. 13, lines 23-24; Clinton Testimony, p. 5, lines 3-5; Dalberg Testimony, p. 6, lines 21-24. At least six of the defendants formed a semi-circle around Lowery. Holthausen Testimony, p. 5, lines 20-21.

Lowery was lying with his arms and hands out to his sides. Dalberg Testimony, p. 6, lines 11-15; Gradwahl Testimony, p. 12, lines 3-5. Defendants did not see a weapon or anything else in Lowery's hands at that point or at any point after that. Gradwahl Testimony p. 11, lines 20-24; Clinton Testimony, p. 8, lines 5-14; Nicholson Testimony, p. 5, lines 11-16; Dalberg Testimony, p. 6, lines 16-17; Ladd Testimony, p. 27, lines 9-10 p. 37, lines 17-21. Lowery had not done anything threatening towards them. Dalberg Testimony, p. 6, line 25-p. 7, line 2; Holthausen Testimony, p. 5, line 25-p. 6, line 1.

As defendants Holthausen and Gradwahl approached Lowery, defendant Ladd aimed the muzzle of his "less lethal" shotgun at him. Gradwahl Testimony, p. 15, lines 15-19; Holthausen Testimony, p. 7, lines 1-2; Ladd Testimony, p. 25, lines 9-11. As they touched or almost touched him, Lowery made a noise and moved his hands underneath his body towards his waistband and started growling and screaming. Ladd Testimony, p. 25, 12-14, p. 56, lines 14-15; Dalberg Testimony, p. 7, lines 5-7; Gradwahl Testimony, p. 60, lines 18-23. The two officers backed away, and Lowery remained lying on the ground. Gradwahl Testimony, p. 17, lines 8-10. Defendant Gradwahl thought Lowery may have been reaching for a weapon and drew his gun as he retreated. Id, p. 61, lines 8-18.

Defendant Ladd, who continued aiming his "less lethal" shotgun at Lowery, then began shouting the following commands at him: "Face down. On your stomach. Hands out. Palms up. Cross your ankles." Ladd Testimony, p. 25, lines 19-22. He warned Lowery that he may be shot. Id, p. 65, lines 12-14. Defendant Gradwahl also yelled commands as he retreated. Gradwahl Testimony, p. 63, lines 10-17. Defendant Ladd knew that Lowery was under the influence of mushrooms. Ladd Testimony, p. 25, lines 23-25, p. 62, lines 20-23. Based on his training, defendant Ladd knew that mushrooms are a mind-altering drug that can cause a person to hallucinate and become easily frightened. Id, pp. 7-8. He also knew that a person who has taken mushrooms might not even be aware of his actions. Id, p. 8. Given Lowery's condition, it was apparent to defendant Ladd that Lowery might not have been able to comprehend the commands. Id, p. 26, lines 3-11.

Nevertheless, when Lowery did not follow his commands but instead put his left wrist on the ground and started to push up onto his left leg with his fists clenched, defendant Ladd shot him directly in the abdomen. Id, p. 26, lines 15-18; p. 56, lines 3-5; p. 58, lines 9-13; p. 65, lines 15-16. When he fired the first shot, defendant Ladd admitted Lowery was not on his knees, but was down on the ground. Id, p. 26, line 19-p. 27, line 3.^2a According to defendant Holthausen, Lowery was "lying face down and squirming" when defendant Ladd fired the shot. Holthausen Testimony, p. 7, line 20-25. Likewise, according to defendant Gradwahl, Lowery was "still lying down on the patio" when defendant Ladd shot him. Gradwahl Testimony, p. 17, lines 11-14.

2a Defendant Ladd's distance from Lowery was disputed. Plaintiffs' expert opined that defendant Ladd was less than 10 feet away from Lowery for the first five shots. However, defendant Ladd testified that he shot from about 20 feet away for the first four or five shots and further away for the remaining shots. Ladd Testimony, pp. 75, lines 5-21. He also aimed below the belt line in accordance with his training. Id, p. 55, line 20-p. 56, line 2; p. 61, lines 10-17.
According to defendants' law enforcement expert, it is reasonable and appropriate to shoot below the belt from less than 30 feet away. Katsaris Testimony, p. 35 line 25-p. 36, line 4.

Right before or after defendant Ladd fired the first round, Lowery said, "Just shoot me. I don't care." Ladd Testimony, p. 65, lines 13-18. The first shot had no effect which "rather shocked" and "amazed" defendant Ladd. Id, p. 65, line 25-p. 66, line 3; p. 66, lines 16-17. Although defendant Ladd had never deployed the "less lethal" shotgun before, he had seen it deployed many times and had yet to see it fail. Id, p. 66, lines 3-10. Defendant Ladd continued to shout commands and seconds later shot Lowery again, this time directly in the groin, which caused a momentary drop in Lowery's stance. Id, p. 27, lines 18-p. 28, line 1; p. 66, line 16-p. 67, line 3; p. 67, lines 16-17; Dalberg Testimony, p. 35, lines 9-13. According to defendant Ladd, Lowery was on his knees when he fired the second shot.^3a Ladd Testimony, p. 27, line 24 p. 28, line 1. After the second round, "Lowery continued to get up, and he's screaming in this guttural rage, fists balled up, starting to what [defendant Ladd] ascertained as him coming towards" defendants. Ladd Testimony, p. 67, lines 5-9. Defendant Ladd continued to shoot Lowery in his left leg while he was either lying down or on his knees on the patio. Id, pp. 28-29 p. 67, lines 7-9; Holthausen Testimony, p. 8, lines 1-3; Dalberg Testimony, p. 8, lines 21-25; Gradwahl Testimony, p. 19, line 23-p. 20, line 5. Before Lowery demonstrated an ability to stand up, defendant Ladd shot him at least four to five times in his abdomen, hip, and thigh.^4a Ladd Testimony, p. 28, line 9-p. 29, line 3.

3a Defendant Gradwahl testified that Lowery was "still lying on the patio" when defendant Ladd fired the second shot. Gradwahl Testimony, p. 18 line 20-p. 19, line 1. Defendant Gradwahl further testified that after those first two shots, Lowery was down on the ground "yelling and screaming and squirming around." Id, p. 19, lines 2-5. However, for purposes of a motion for judgment as a matter of law, this court must consider the evidence most favorable to defendants.

4a There is a dispute as to whether defendant Ladd fired four or five rounds before reloading. It is likely that he fired five rounds because the shotgun's chamber held five shells. However, this court accepts the testimony that either four or five rounds were fired.

When he fired these shots, defendant Ladd did not see a weapon — or anything resembling a weapon — in Lowery's hands. Ladd Testimony, p. 29, lines 4-8. He could not see Lowery's palms, which were "balled" or "closed" in fists ( id, p. 51, line 25-p. 52, line 5; p. 56, lines 9-18; p. 65, lines 6-20; p. 67, lines 5-9) and could have held a small weapon. Id, p. 48, lines 8-12. However, he "basically could see his hands" ( id, p. 63, lines 12-13) and "had no reason to believe that [Lowery] had a weapon in his hand at that time." Id, p. 27, lines 9-14 (emphasis added). Moreover, Lowery at no time made verbal threats to harm the defendants. See Holthausen Testimony, p. 15, line 24-p. 16, line 1; Clinton Testimony, p. 8, lines 22-24; Dalberg Testimony, p. 11, lines 15-17. Although five of the defendants watched defendant Ladd repeatedly shooting Lowery when he was down on the ground (defendant Livingston was not in the back yard at this point), none of them intervened.

After shooting Lowery four to five times, defendant Ladd stopped to reload. At that point, while Lowery was on his knees and had his arms and hands out to his sides, at least two of the defendants took out their canisters of pepper spray and began spraying him in the face. Dalberg Testimony, p. 9, lines 7-13; Gradwahl Testimony, p. 27, lines 14-17. One person spraying Lowery was defendant Clinton. Clinton Testimony, p. 5, lines 6-10. The two officers each emptied their entire cans of pepper spray in Lowery's face. Clinton Testimony, p. 6, lines 2-3; Nicholson Testimony, p. 4, lines 9-11.

Defendant Clinton could not see Lowery's hands, was concerned about the profuse bleeding and ineffectiveness of the "less lethal" shots, and hoped to stop Lowery from getting up in order to get him medical attention. Clinton Testimony, p. 23, line 21-p. 24, lin 14.

After being sprayed, Lowery went back down to his stomach and returned his hands to his waistband area. Gradwahl Testimony, p. 27, lines 18-20, p. 30, lines 4-10. A third officer, defendant Gradwahl, then took out his pepper spray, walked up to Lowery, and began spraying him. Id, p. 30, lines 11-19. Defendant Gradwahl also emptied his full canister on Lowery. Id, p. 30, lines 20-22.

After being sprayed with three full canisters, Lowery remained down on the ground.^5a II. Use of Batons, Next 5-6 Shots, and Pepper Spray After Charging Defendant Dalberg

5a According to defendant Gradwahl, while Lowery was still lying on the ground, defendant Ladd shot him a couple more times with the "less lethal" shotgun. Gradwahl Testimony, p. 31, lines 10-12. His memory as to when these shots were fired is inconsistent with defendant Ladd's testimony.

After being shot four or five times and sprayed with three full cans of pepper spray, Lowery got up and ran toward defendant Dalberg. See Gradwahl Testimony, p. 31, lines 13-17. Some defendants testified that Lowery rushed or charged defendant Dalberg and tried to tackle him. Whatever was Lowery's intent, he did not successfully tackle defendant Dalberg. See Dalberg Testimony, p. 11, lines 9-12. At most, he grabbed defendant Dalberg around the waist area (in the area of his gun), and then defendant Dalberg spun out of the way. Id; Gradwahl Testimony, p. 37, lines 5-13 p. 68, lines 4-6. In the process of spinning out of the way, defendant Dalberg sprained his knee. Dalberg Testimony, p. 11, lines 20-22.

Several of the defendants began hitting Lowery with their ASP batons. See Gradwahl Testimony, p. 35, lines 14-20. An ASP baton is an expandable metal baton that can cause serious bodily injury or even death and is supposed to be used to defend against physically aggressive and threatening behavior. Gradwahl Testimony, pp. 33-34. Defendant Nicholson hit Lowery five to ten times as hard as he could on the back of his legs, the back of his shoulder, and on his back. Nicholson Testimony, p. 4, line 12-p. 5, line 10. At the same time, defendants Clinton, Gradwahl, and Holthausen were hitting him hard with their ASP batons in the middle of his back, on the side of his body, and on his upper thigh. Clinton Testimony, p. 6, lines 15-22; Gradwahl Testimony, p. 34, lines 11-21; Holthausen Testimony, p. 8, lines 22-23. During this time, Lowery was lying face down on the ground with his hands underneath him. Holthausen Testimony, p. 8, lines 14-19.

According to defendant Holthausen, he and the other defendants then backed up and defendant Ladd began shooting Lowery again. Id, p. 9, lines 17-21. Defendant Ladd shot three more times, reloaded and shot another three times, for a total of ten or eleven shots. See Ladd Testimony, p. 30, lines 12-14; pp. 70-71; p. 74, line 13-p. 75, line 1. Defendant Ladd conceded that for some of the additional shots, Lowery was on his knees. Id, p. 30, lines 7-11. He announced each time before shooting. Id, p. 75, lines 1-4. According to defendant Dalberg, the last of these shots struck Lowery in the back while he was lying on his side. Dalberg Testimony, p. 12, line 21-p. 13, line 4. After being shot, Lowery "rolled over." Id, p. 13, lines 5-6. As he lay there, defendants could see that Lowery had no weapon in his hands. Id, p. 13, lines 7-12.

Next, three or four of the defendants took out their canisters of pepper spray and began simultaneously spraying Lowery directly in the face. Defendants Holthausen and Dalberg emptied full cans on him and were aware that several other officers were doing the same. Holthausen Testimony, p. 10, line 4-p. 11, line 3; Dalberg Testimony, p. 13, line 12-p. 14, line 12. Defendant Clinton, who had already emptied his own can, asked defendant Ladd for his can, and emptied that can on Lowery as well. Clinton Testimony, p. 6, lines 4-7. This brought the total to at least six full cans of pepper spray, or 72 seconds of spray.

After emptying his canister of pepper spray, defendant Dalberg began striking Lowery with his ASP baton on the right arm and the right side of his body. Dalberg Testimony, p. 14, lines 13-16 20-22. At least one other defendant began hitting him again as well. Id, p. 14, lines 23-24. Defendant Gradwahl admitted that he and the other defendants were "pumped up and excited that this point" and that their adrenaline was "going pretty high." Gradwahl Testimony, p. 36, lines 17-20. He told everyone to "calm down." Id, p. 37, line 14-p. 38, line 6.

III. Subsequent Use of Batons and Maximum Restraint

After being struck with batons, shot with the "less lethal" shotgun, and pepper sprayed, Lowery, who was lying down on the ground, got up and either jumped, vaulted, or flopped over the north fence. Gradwahl Testimony, p. 38, lines 11-20; Dalberg Testimony, p. 15, lines 4-9; Clinton Testimony, p. 31 lines 2-8. Defendants immediately looked over the fence and saw him lying on the ground, right on the other side of the fence. Id, p. 38, line 24-p. 39, line 4; Dalberg Testimony, p. 15, lines 14-17; Clinton Testimony, p. 6, line 23-p. 7, line 2. Lowery was lying face down with his hands shoulder-width apart where defendants could see them. Gradwahl Testimony, p. 39, lines 5-7. Defendants Ladd, Gradwahl, Holthausen, Dalberg, and Nicholson hopped over the fence after Lowery while defendant Clinton remained in Seto's back yard shining a light over the fence. Clinton Testimony, p. 7, lines 3-5.

While in the neighbor's back yard, defendants Gradwahl, Dalberg, and Holthausen began hitting Lowery again with batons. Gradwahl Testimony, p. 39, lines 15-18; Holthausen Testimony, p. 11, lines 4-22; Dalberg Testimony, p. 15, line 18-p. 16, line 3. Lowery was either on his hands and knees, in a push-up position, or "starting to get up" at the time. Dalberg Testimony, p. 16, lines 4-17. As their blows landed on him, Lowery went down to his stomach again and stopped trying to get up. Gradwahl Testimony, p. 40, lines 13-15. They continued to hit him on the backside of his body as he lay face down on the ground. See Holthausen Testimony, p. 12, lines 12-16.

While Lowery was face down on the ground, defendant Clinton saw defendant Nicholson "put his foot on [Lowery's] back" and hold onto the north fence for balance. Clinton Testimony, p. 7, lines 11-17. Likewise, defendant Livingston (who was back on the scene) could see that "defendant Nicholson was keeping Lowery face down by standing with one or both feet on Lowery's upper back, shoulder blade area, while holding onto the north fence for balance." Livingston Testimony, p. 30, lines 3-7.

Defendant Livingston watched defendant Nicholson holding Lowery face down like that while others handcuffed him. Id, p. 30, lines 8-10. Although defendant Livingston saw that Lowery was struggling underneath the weight of defendant Nicholson, he did not see any physically aggressive behavior or anything to indicate extraordinary or "super human" strength on the part of Lowery. Id, p. 37, lines 5-15. Moreover, defendant Livingston was concerned that Lowery was being held face down because he knew about the dangers of compressional asphyxia or suffocation. Id, p. 31, lines 15-21. Despite his concern, he did not intervene, but left the scene to put away the shotgun. Id, p. 70, lines 12-19.

Sergeant Adams arrived at the scene shortly after 6:13 a.m. Adams Testimony, p. 12, lines 1-4. She saw Lowery stomach down on the ground and defendant Nicholson was standing with one foot on Lowery's upper body (shoulder/neck area) while holding onto the fence for balance. Id, p. 12, lines 8-25, p. 14, lines 2-22. Defendant Nicholson's "entire body weight" was pressing down on Lowery. Id, p. 14, line 25-p. 15, line 9. Defendant Nicholson admitted putting his right foot on Lowery's upper back and pushing down on him with his full body weight and placing his left foot on the back of Lowery's head, while holding onto the fence for balance. Nicholson Testimony, p. 5, line 23-p. 6, line 21. He later clarified that he put his right foot on the upper outside part of Lowery's left shoulder. Id, p. 34, line 15-p. 35, line 9. He also clarified that he held Lowery's head down only briefly. Id, p. 38, lines 16-21. Defendant Nicholson was concerned that unless restrained, Lowery would run away and bleed to death or hurt someone. Id, p. 36, lines 6-p. 37, line 1.

It was clear to Sergeant Adams that Lowery was not consciously resisting, but was instead out of touch with reality and could not comprehend commands being given to him. Id, p. 16, lines 2-5, p. 17, lines 3-5. She heard Lowery repeatedly calling out the words, "momma, momma, momma." Id, p. 17, lines 6-9. As defendant Nicholson continued to stand on Lowery, she saw other officers putting handcuffs on him. Id, p. 17, lines 21-24.

Defendant Nicholson testified that at no point in his training has he ever been taught to stand on a person's upper back, neck, or head. Id, p. 5, lines 16-18. Moreover, defendants' own expert on the use of force testified that it is well-known throughout law enforcement that weight should not be put on a prone person's neck or back. Katsaris Testimony, p. 81, lines 14-17. He also testified that an officer should not, "under any circumstances," put his full body weight on a person's upper back or neck. Id, p. 72, lines 12-23, p. 81, lines 5-17. Pushing someone's head into the ground when weight is applied to his back is inappropriate because it restricts the ability to breathe. Id, p. 82, lines 1-4. However, defendants' expert also testified that to assist with handcuffing, it is appropriate to kneel on the person's shoulder with the other hand securing the head, and that using a foot, instead of a knee, on the shoulder with the other foot placing slight pressure on the person's head is an appropriate modification of this technique. Id, p. 52, line 24-p. 56, line 11.

While Lowery was laying face down with defendant Nicholson standing on him, defendants Holthausen, Dalberg, Gradwahl, Ladd, and Nicholson began putting him in the "maximum restraint," which involves handcuffing a person's hands behind the back, binding the ankles together, and connecting the bound ankles to the handcuffs by a nylon strap.⁶ Ladd Testimony, p. 35, lines 5-13; Dalberg Testimony, p. 16, lines 18-23; Gradwahl Testimony, p. 41, lines 9-14; Holthausen Testimony, p. 12 line 17-p. 13, line 4; Livingston Testimony, p. 30, lines 11-17. Defendants were aware that putting a person in the maximum restraint position can restrict their ability to breathe. E.g., Ladd Testimony, p. 35, lines 14-17; Gradwahl Testimony, p. 41, lines 15-21; Holthausen Testimony, p. 13, lines 23-25. In addition, some defendants were aware that because of his mental and physical condition, Lowery was a "likely candidate" for asphyxia or what is known in law enforcement as "sudden death syndrome." See, e.g., Holthausen Testimony, p. 13, lines 18-22; Livingston Testimony, p. 31, lines 19-25. However, after placing Lowery in the maximum restraint position, defendants continued to hold Lowery's stomach and face down on the ground. Gradwahl Testimony, p. 41, lines 22-24; Holthausen Testimony, p. 13, lines 13-17; Clinton Testimony p. 8, lines 1-4.

6 Plaintiffs refer to this position as a "hog-tie," to which defendants objected because Lowery's ankles were not touching his hands, but were tied with several inches of slack. Katsaris Testimony, p. 49, line 2-p. 50, line 7. Because there is no dispute over the manner in which Lowery was restrained, this court will use the term used by defendants, namely the maximum restraint position.

After Lowery was fully handcuffed, Sergeant Adams called dispatch between 6:13 and 6:14 a.m. to clear the medics from staging. Id, p. 17, line 25-p. 18, line 7. At that time, Lowery was fully handcuffed and defendants had begun putting him in the maximum restraint position. See Adams Testimony, p. 18; Clinton Testimony, p. 7, lines 18-25. After being cleared from staging at 6:14 a.m., it took the paramedics two minutes to get to the back yard, arriving at Lowery's side at 6:16 am. McPherson Testimony, p. 9, lines 5-8, p. 11, lines 11-14.

As the paramedics approached, Lowery was lying face down in a maximum restraint position with defendant Nicholson still standing on his upper back and head. Id, pp. 12-18; Hanselman Testimony, p. 9, lines 10-20. By the time paramedic Lorin McPherson ("McPherson") arrived, defendant Nicholson had stepped off Lowery. Nicholson Testimony, p. 16, lines 10-19. McPherson then assessed Lowery's condition.⁷ McPherson Testimony, p. 18, lines 6-11. Lowery was loaded onto a stretcher and taken to the ambulance in the maximum restraint position. Id, p. 24, lines 2-8. The police removed his restraints at 6:20 a.m. Id, p. 24, lines 9-16. The paramedics did everything they could to revive Lowery, but their efforts were unsuccessful. Id, p. 24, lines 17-21.

7 According to McPherson, when he arrived, Lowery was not moving or breathing; he was either unconscious, in a coma, or dead. McPherson Testimony, pp. 18-22; p. 11, line 24-p. 12, line 4; p. 25, lines 9-16. Paramedic David Hanselman also testified that Lowery was not moving at all before being put on the stretcher. Hanselman Testimony, p. 10, line 24-p. 11, line 10. However, as noted below, the paramedics' testimony conflicts with the testimony of some defendants that Lowery was still struggling when placed on the stretcher.

Several defendants and Sergeant Adams testified that although Lowery never got to his feet, he continued to struggle throughout the encounter in the neighbor's back yard, such as by pushing against the ground to get up, trying to keep the officers from getting a hold of his hands, "bucking" off the officers and kicking⁸ at them. Adams Testimony, p. 22, lines 1-13; Gradwahl Testimony, p. 39, lines 22-25, p. 71, lines 12-17, p. 75, lines 18-25, p. 76, lines 1-16; Clinton Testimony, p. 32, lines 5-8; Dalberg Testimony, p. 15, line 18-p. 16, line 8, pp. 39-41; Holthausen Testimony, p. 12, line 17-p. 13, line 17. Among the reasons defendant Gradwahl used force in the neighbor's back yard, such as the baton strikes, was because Lowery "had already shown that he would attack us, and so at that point, you know, basically [I was] just using [the baton] to keep him from attacking me or another officer." Gradwahl Testimony, p. 72, lines 12-17. Even after being handcuffed, Lowery continued to resist, such as by throwing off the officers when they tried to complete the maximum restraint by binding his legs and connecting them with the handcuffs. See, e.g., Gradwahl Testimony, p. 76, lines 1-4. Sergeant Adams and some defendants recalled that Lowery was still kicking and struggling even after being placed in the maximum restraint position, such that some of them were concerned he might be able to break the restraint. Adams Testimony, p. 33, lines 1-8; Gradwahl Testimony, p. 79, lines 5-13; Dalberg Testimony, p. 41, lines 13-25.⁹ Most importantly, both Sergeant Adams and defendant Nicholson made it clear that the latter did not stand on Lowery at any point when he was not resisting. Adams Testimony, p. 23, lines 16-24; Nicholson Testimony, p. 39, lines 18-23. Finally, some defendants testified that Lowery was still struggling even when he was placed on the stretcher by the paramedics. Gradwahl, p. 45, lines 3-12; Holthausen, p. 18, line 23-p. 19, line 25; Ladd, p. 39, lines 1-22.

8 Although he was not present for the entire encounter, defendant Livingston testified that he never saw Lowery strike or assault any of his fellow officers. Livingston Testimony, p. 36, line 25-p. 37, line 4. Additionally, although he testified that Lowery was "bucking," defendant Clinton stated that Lowery "didn't strike or kick any of the officers that I was aware of, no." Clinton Testimony, p. 8, lines 20-21 p. 32, line 8.

9 Defendant Dalberg testified that once Lowery was in the maximum restraint position, he was still struggling, but "I felt like we had him at that point." Dalberg Testimony, p. 41, lines 24-25.