FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Allison D. Burroughs, U.S. District
Stephen C. Pfaff, with whom Louison, Costello, Condon &
Pfaff LLP was on brief, for appellant.
S. Sinsheimer, with whom Wesley B. Stoker and Sinsheimer
& Associates were on brief, for appellee.
Lynch, Kayatta, and Barron, Circuit Judges.
excessive force case, brought under 42 U.S.C. § 1983,
stems from an arrest on June 30, 2013. Defendant George
Gikas, a police officer on crowd-control duty, grabbed
plaintiff Alfonso Ciolino from behind by the collar and
dragged him backward and downward to the pavement, after
seeing Ciolino taunting K-9 dogs. The forceful takedown
caused Ciolino to sustain a torn rotator cuff. The incident
was captured on a 24-second video, admitted into evidence at
trial. We are faced with the question of whether to sustain
the district court's post-verdict denial of qualified
immunity to Sergeant Gikas. See Ciolino v.
Eastman, No. 13-cv-13300-ADB, 2016 WL 4148197 (D.
Mass. Aug. 4, 2016). We affirm.
jury found that Gikas violated Ciolino's Fourth Amendment
right to be free from excessive force. Responding to special
questions on the verdict form, the jury also found that
Ciolino failed to comply with police orders and taunted K-9
dogs immediately prior to his arrest and that Gikas had
probable cause to arrest Ciolino on the night in question.
The jury did not answer one of the special questions, which
asked whether Ciolino was "inciting the surrounding
crowd immediately prior to his arrest."
district court then denied Gikas's post-verdict motion
for judgment as a matter of law, rejecting Gikas's
argument that he was entitled to qualified immunity. We agree
with the district court that a reasonable officer in
Gikas's position would have understood that Gikas's
actions violated Ciolino's Fourth Amendment right to be
free from excessive force.
find no abuse of discretion in the district court's
decisions not to define the word "incited" for the
jury, in the context of the special question on the verdict
form, and to allow the jury to leave that question
adopt the district court's recitation of the facts but
provide the following summary. Like the district court, we
view the facts in the light most favorable to the verdict,
deferring "to the jury's discernible resolution of
disputed factual issues." Raiche v.
Pietroski, 623 F.3d 30, 35 (1st Cir. 2010) (quoting
Iacobucci v. Boulter, 193 F.3d 14,
23 (1st Cir. 1999)).
Saturday, June 29, 2013, Alfonso Ciolino, his wife Cinsia,
and two other couples attended together the annual St.
Peter's street festival in downtown Gloucester,
Massachusetts. The group eventually arrived at the St.
Peter's Club on Main Street ("the Club"), and
Ciolino briefly went inside with one companion to use the
men's bathroom while the rest of the group waited
outside. Ciolino testified that he had "maybe a beer and
a half, maybe two" over the course of the evening and
that he was not drunk when he left the Club around midnight.
had gathered outside the Club shortly after midnight, which
was approximately when Ciolino left the Club. Law enforcement
officers from different departments and K-9 dogs were present
for crowd-control purposes. Gikas, a Sergeant from the Essex
County Sheriff's Department, and his colleague, Sergeant
John Pickles, were present on K-9 duty. Two other officers
from the same department, Aaron Eastman and David Earle, were
also present on plainclothes duty. Around the time Ciolino
was leaving the Club, officers ordered the crowd to disperse.
Some members of the crowd began moving along the sidewalk;
others moved slowly or not at all. Sergeant Gikas and
Sergeant Pickles were standing in the street, facing the
crowd, which was gathered on the sidewalk. Gikas and his dog
were about six feet away from the sidewalk; Pickles and his
dog were in front of Gikas, closer to Ciolino and the
sidewalk. Ciolino walked away from the Club's exit, in
the direction of Sergeant Gikas and Sergeant Pickles.
video, Ciolino is seen walking along the sidewalk, pausing in
front of Pickles's dog in the street, and gesturing
toward the dog, without ever touching the dog or leaving the
sidewalk. Ciolino admits that he also said something along
the lines of "Look, the dogs got . . . muzzle[s] in
their mouths. They can't do anything." It is clear
on the video, and is undisputed, that Ciolino then turns his
back to the street, away from Gikas, Pickles, and the dogs.
The video shows Gikas's and Pickles's dogs barking
continuously toward the crowd both before and after
video shows no visible reaction by Pickles after
Ciolino's gesture toward Pickles's dog. Nor does
anyone in the crowd appear to react, although the video
captures only a portion of the crowd. The district court
stated, and the video confirms, that Ciolino "did not
use or threaten violence, nor was he inciting the crowd to
act violently" in a manner that warranted a sudden and
forceful arrest. Ciolino, 2016 WL 4148197, at *5.
video shows Gikas then walking up to Ciolino, grabbing
Ciolino from behind by at least his shirt collar, and yanking
Ciolino forcibly backward and downward, off the sidewalk and
onto the pavement in the street. Ciolino is seen falling
awkwardly to the ground, landing hard on his right side. The
video ends with Eastman and Earle, the plainclothes officers,
converging on the prone Ciolino and handcuffing him. Ciolino
was later diagnosed with a torn rotator cuff as a result of
was taken to the police station after his arrest and charged
with a Gloucester ordinance violation and disorderly conduct.
The Gloucester District Court later dismissed the charges.
District Court Proceedings
and his wife brought suit in federal court on December 31,
2013, pleading § 1983 and state law claims against
Gikas, several other officials, and the City of
Gloucester. On September 3, 2015, the district court
granted in part the defendants' motion for summary
judgment but allowed the § 1983 excessive force claim
and a state law malicious prosecution claim to proceed to
trial against Gikas, Eastman, and Earle.
trial began on January 19, 2016. The verdict form included
four questions framed and posed by the district court, over
Ciolino's objection. The jury answered ...